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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
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
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-
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.