Western Granite & Marble Co. v. Knickerbocker

California Supreme Court Jun 15, 1894 No. No. 15196Published

Before: Temple

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Holding. The court held that a statute regulating the height of division fences is constitutional when construed as applying only to fences built upon the boundary line, as the legislature may regulate structures that rest partly on the land of an adjoining proprietor. Consequently, the defendant could be enjoined from maintaining a fence exceeding ten feet in height on the division line.

Issues

Whether the act regulating the height of division fences and partition walls is unconstitutional.
Whether a property owner has a right to enjoin the construction of a fence on an adjoining lot that obstructs light and air.
Whether the statute applies to fences built on the boundary line.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The legislature cannot thus create an easement in favor of certain proprietors over the lands of another, nor declare the usual and ordinary use of property a nuisance when such use infringes upon the legal rights of no one.”

“Confining the operation of the statute to division fences, I see no objection to a requirement that it shall not be of such a character as to injure the neighboring proprietor.”

Synopsis

Basement fob Light and Aib—User—Ownership of Adjoining Lot. The doctrine that a proprietor of land may by user acquire an easement over adjoining land for the passage of light and air does not prevail in this country, and merely owning the adjoining lot cannot give the proprietors such an easement.

Id,—Poweb of Legislature—Nuisance.—It is not competent for the legislature to vest in an adjoining proprietor the power to prevent his neighbor from building such structure as he pleases, provided it is not a nuisance, and it is not a nuisance merely because it obstructs the passage of light and air.

Id.—Act Regulating Division Bences—Constitutional Law.—The act of March 9, 1885, regulating the height of division fences and partition walls in cities and towns is a general law, and is to be construed so as to not render it unconstitutional; and so construed, it prevents the erection of a partition wall or division fence resting upon the division line between adjoining proprietors more than ten feet in height; but it does not prevent the erection of any kind of a structure of greater height wholly upon the land of an adjoining proprietor, although such structure may prevent the passage of light and air into the windows of the adjoining building.

Id,—Injunction Against Division Fence—Effect of Judgment.—A defendant may be properly enjoined from erecting or maintaining any fence more than ten feet high on the division line, and may be required to remove all that portion of the division fence which is more than ten feet high, and be enjoined from obstructing the light and air coming from his premises into the windows upon the adjoining land by any division fence or wall more than ten feet high; but such judgment has no effect upon the right of the defendant to erect any structure of greater height upon his own land.

Temple, C. The defendants appeal from the judgment, and from a refusal of a new trial.

The appellants and respondent own adjoining lots in the city of San Jose. The complaint contains two [113]counts. The first describes plaintiff’s lot, and avers that it has erected a building thereon for its offices, which building has six windows in the northerly wall, through which, only, light and air are or can be admitted into that portion of the building; and if such light and air be materially obstructed, said portion of plaintiff’s building will become useless. Plaintiff has been using the building and office for more than six months.

Defendant owns the adjoining lot, which he occupies as a residence, but, until the grievances complained of, has never obstructed the passage of light and air over that part of his premises to plaintiff's building, and has no use whatever for that portion of his premises whereby said light and air would be obstructed.

Nevertheless, on the 19th of June, 1891, defendant commenced to build a°long the division line a solid board fence twenty feet high, in such manner as to prevent the passage of light and air into said windows. That the defendant has not obtained the permission of the city council to build such fence, nor has plaintiff ever consented thereto.

That defendant will build the fence unless enjoined, and plaintiff will suffer irreparable injury therefrom.

The second count adds an allegation that the building of the fence is wanton and malicious.

The court found the facts as stated in the first count of the complaint, but did not find that defendant was acting wantonly or maliciously.

The doctrine that a proprietor may by user acquire an easement over adjoining land for the passage of light and air does not prevail in this country, and, if it did, the facts stated in the complaint would be insufficient to show such easement. Indeed, no facts are averred or found "which would give plaintiff any right whatever in the lands of defendant.

The sole ground, therefore, upon which the judgment is based is that the proposed structure is unlawful, and, as it interferes with the comfortable enjoyment of plain[114]

Western Granite & Marble Co. v. Knickerbocker

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