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NOTES 73 

It will be seen from these statutes that the courts of equity have 
made a marked departure from the fundamental idea that their 
jurisdiction is exclusively in personam when attempting to enforce 
obedience to their decrees. The statutes are the result of the feel- 
ing which has been persistently growing, that equity itself should 
have some method of enforcing and carrying out a decree which 
an obstinate defendant has refused to perform. This tendency is 
further illustrated by the new Equity Rule eight of the Supreme 
Court of the United States, the latter part of which provides that: 
"If a mandatory order, injunction, or decree for the specific per- 
formance of any act or contract be not complied with, the court or 
a judge, besides or instead of, proceeding against the disobedient 
party for a contempt or by sequestration, may by order direct that 
the act required be done, so far as practicable by some other person 
appointed by the court, at the cost of the disobedient party, and the 
act, when so done, shall have like effect as if done by him." 15 Turn- 
ing for a moment to the Pennsylvania decision I6 before cited, it is 
obvious that the case would have been far more effectively disposed 
of had the court directed the building to be removed by some ap- 
pointee of their own, in accordance with this rule, instead of allow- 
ing their hands to be tried by the dogged contumacy of a defendant 
who preferred jail to obedience to the decree. No legislation is 
necessary to enable courts of equity to exercise this power of acting 
through third parties at the cost of the disobedient defendant, since 
it is a power inherent in all courts. It is hoped that the definite 
recognition by our highest court of the existence of such a power 
will not only have a salutary effect upon the courts in blazing a way 
for future judicial development, but may also result in a statutory 
enactment expressly granting this power to courts of equity and 
thereby satisfying even the most conservative tribunals. 

P. H. R. 



Property— Damages for "Spite" Wall — The right to the full 
and complete enjoyment of an absolute dominion over one's own 
property has for ages been most jealously guarded by our legal sys- 
tem, and any attempt to encroach by legal means upon this right has 
been met with instant and determined opposition. That when a 
man owns property he owns to the heavens above and to the centre 
of the earth below, and that within this rather definite region he 
may do what he pleases so long as he does not violate the public law 
or commit a nuisance, is insisted on as one of the essential attributes 
of this absolute dominion. It is, therefore, interesting to note the 

"The English Rules of the Supreme Court, Order XLII, Sec. 30, pro- 
vides practically the same thing. 

M Supra, note 6. 



74 UNIVERSITY OF PENNSYLVANIA LAW REVIEW 

apparent change in legal sentiment with regard to this right, as 
shown by the various statutes and many of the late cases dealing 
with so-called "spite" fences. Although generally having their in- 
ception in trifling quarrels or petty hatreds, these cases bring out 
the issue squarely, whether this absolute dominion is to exist for all 
purposes, regardless of who may be injured by its exercise. 

The recent case of Hibbard v. Holiday l is an excellent illustra- 
tion of the view taken by a number of late cases and enacted into 
law by many State statutes. The plaintiff had erected an apartment 
building close to the dividing line between his property and the de- 
fendant's lots, with a dozen windows overlooking the lots owned by 
the defendant. The declaration stated that the defendant there- 
upon erected and had since maintained a high brick wall along the 
boundary line, extending along the whole length of the plaintiff's 
building and to within a few feet of its roof in height, and for no 
other purpose than maliciously to injure the plaintiff in the enjoy- 
ment and use- of his property. On demurrer the declaration was 
held to state a cause of action, which ruling was affirmed by the 
Supreme Court. 

It is conceded that in all cases where the structure complained 
of serves some useful or ornamental purpose, even though malice 
may have been the predominating motive for its existence, the 
owner of the property on which it rests is strictly within his rights 
in erecting it, and whatever harm results to the other party is dam- 
num absque injuria. Wherever an easement of light and air exists 
or the doctrine of ancient windows prevails, if a spite fence inter- 
feres there is no doubt as to the remedy. But in America, generally 
these doctrines do not exist. 

Before the opinion of Mr. Justice Morse, of the Michigan Su- 
preme Court, in the case of Burke v. Smith, 2 the majority of courts 
and the undoubted weight of authority favored the application of 
the maxim cujus est solum ejus est usque as coelum to its fullest ex- 
tent. They permitted the erection of spite fences, while deploring 
the necessity to do so, on the ground that it would be an unwar- 
ranted interference with a person's right to the full enjoyment of 
his own property, and insisted that the remedy, if any, should be 
through legislation. 3 But Mr. Justice Morse took the position that 



'158 Pac. 1158 (Okla. 1916). 

* 69 Mich. 380 (1888). 

* Pickard v. Collins, 23 Barb. 458 (N. Y. 1856) ; Levy v. Brothers, 4 Misc. 
48 (N. Y. 1893) ; Mahan v. Brown, 13 Wend. 261 (N. Y. 1835), a leading 
case- Lapere v. Luckey, 23 Kan. 534 (1880) ; Guest v. Reynolds, 68 111. 478 
(1871) ; Ransom v. McAlister, 9 Ky. L. Rep. 495 (1887) ; Letts v. Kessler, 
54 Ohio St 73 (1896) ; Giller v. West, 162 Ind. 17 (1904) ; Bordeaux v. 
Green, 22 Mont. 254 (1899) ; Metzger v. Hochrein, 107 Wis. 267 (1900), criti- 
cising the Michigan cases severely as a judicial trespass on the legislative 
authority. 



NOTES 75 

no man should have the right maliciously to injure his neighbor 
under the guise of exercising a legal right, when his sole purpose in 
exercising that right is to injure his neighbor and in no way to ben- 
efit himself or others. 4 His opinion was given in a divided court and 
did not become the law of Michigan until some time later, when it 
was several times unanimously affirmed. 5 The opinion has been 
quoted at length in almost every case following the view expressed 
therein, and has probably determined the noticeable drift in opinion 
in such cases, toward a broader interpretation of the maxim sic 
utere tuo, ut alienum non laedas* 

A number of States have enacted statutes forbidding the erection 
of "spite" fences where the sole motive for erection is to spite or 
injure the adjoining property owner and where the fence does not 
benefit the builder either by way of protection, use or ornament. 7 
The remedy under these statutes is generally by injunction, and in 
proper cases penalties or damages are allowed. It is necessary that 
malevolence be the predominating motive for its erection ; 8 and that 
the fence or wall be on the boundary line itself or very close to it. 9 

It is submitted that the position adopted by the principal case 
and those like it, is the better view and does not involve any great 
deprivation of legal rights, such as is feared by the ultra-conserva- 
tive legalists. 

T. L. H. 



"'But it must be remembered that no man has a legal right to 
make a malicious use of his property, not for any benefit to him- 
self, but for the avowed purpose of damaging his neighbor. To hold 
otherwise would make the law a convenient engine, in cases like the 
present, to injure and destroy the peace and comfort, and to damage 
the property, of one's neighbor, for no other than a wicked purpose, 
which in itself is — or ought to be— unlawful. The right to' do this 
cannot, in an enlightened country, exist either in the use of property 
or in any way or manner." Mr. Justice Morse, in Burke v. Smith, 
note 2, supra. 

"Flaherty v. Moran, 81 Mich. 52 (i8go) ; Kirkwood v. Finegan, 
95 Mich. 543 (1893); Peek v. Roe, no Mich. 52 (1896). 

'Rideout v. Knox, 148 Mass. 368 (1889); Barger v. Barringer, 151 
N. C. 433 (1909); Norton v. Randolph, 176 Ala. 381 (1912); Bush v. 
Mocket, 95 Neb. 552 ( 1914) ; Mete v. Tierney, 13 N. M. 363 ( 1906) ; 
and the Michigan cases in note 5, supra. 

' California, Stat. 1885, p. 45 ; Connecticut, Rev. St. 1902, Sees. 1013, 
1 107; Maine, Rev. St., Chap. 22, Sec. 6; Massachusetts, Rev. Laws, 1902, 
Chap. 33, Sec 19; New Hampshire, Pub. Stat., Chap. 143, Sees. 28, 29, 30; 
Vermont, Pub. Stat., 1906, Tit. 22, Chap. 179, Sec. 4150; Washington, Rem. 
& Bal. Code, Sec. 720, 2 H. C. Sec. 268. 

"Whitlock v. Uhle, 75 Conn. 423 (1003) ; Healey v. Spaulding, 104 Me. 
T22 (1908); Rideout v. Knox, 148 Mass. 368 (1889); Karasek v. Peier, 22 
Wash. 419 (1000). 

8 Ingwersen v. Barry, 118 Cal. 342 (1897) ; Brostrom v. Lauppe, 179 Mass. 
315 (1901).