Gallagher v. Dodge

Loomis, J. This is a petition for an injunction under the statute (Gen. Statutes, p. 477, sec. 4,) which provides that “ an injunction may be granted against the malicious erection by an owner or lessee of land of any structure upon it intended to annoy and injure any proprietor of adjacent land in respect to his use or disposition of the same.” The structure which it is sought to enjoin the defendants against erecting, is a show-case in front of their store and upon their own premises, but to' be so placed as to obstruct a side window in the plaintiff’s store, which store projects several feet beyond that occupied by the defendants, and thus has space for a side window looking out upon the platform constructed from the front of the defendants’ store to the street line. This side window is upon the line between the — 391 — premises of the two pai’ties, and serves the occupant of the plaintiffs store both for light and for the display of his goods. It is found that the object of the defendants in procuring the show-case was two-fold—first, to display their own goods to the best advantage; and second, to prevent the public from seeing the goods of the occupant of the plaintiffs store through his side window. It was the right of the defendants, and the exercise of the right could not be regarded as unreasonable, to occupy the space between the front of their store and the street line in the way most advantageous to their business. They were under no obligation to consult the interests of an adjoining proprietor. So far as he was availing himself of the open space to secure to himself more light by a window looking out upon it, or an opportunity to display his goods by exposing them in the window, he was availing himself of an opportunity that he held, and must have known that he held, by mere sufferance, for the defendants’ store could at any time have been built out in front up to the street line, and so as completely to darken his side window, with no invasion of his rights and no ground of complaint on his part. If possibly a building line established by the city would have prevented them from building out to the street line, the mere fact that the plaintiff’s building was erected before the building line was established was one that gave him no rights against the defendants as to the open space in front of their premises. What they might have done so effectually by building out over this space they had an equal right to do in any other mode no more injurious to the adjoining proprietor. We can not see why they might not reasonably do it in the mode which they adopted. But it is claimed that the whole character of the act as to its legality is changed by the fact that an element of malice went into it. And this brings us to the difficult question, where the line shall be drawn between structures that are useful and proper in themselves, but into the erection of which a subordinate malicious motive enters, and those where — 392 — the malicious intent is the leading feature of the act, and the possible usefulness of the structure a mere incident. The only case in which this statute has come up for construction is that of Harbison v. White, 46 Conn., 106, in which it was held that a coarse structure erected for the malicious purpose of darkening the windows of a neighbor fell within the intent of the statute, although it might serve a useful purpose in screening the defendants’ premises from observation. Here the malicious purpose was altogether the predominant one, and the usefulness of the structure very limited and merely incidental. In the present case these conditions are reversed, and it is found that the primary purpose was the reasonable and proper one of displaying the defendants’ goods, while the malicious part of the motive was secondary. While we are not prepared to say that this relation of the two motives should always determine the court against the granting of an injunction, and the opposite relation in favor of granting one, yet we regard the predominance of the malicious motive as generally essential to a case in which the court will think itself justified in interfering. The statute speaks of the structure intended as a “malicious erection,” and one the intent of which is “to annoy and injure any proprietor of adjacent land.” We think w.e do not go too far in saying that this malicious intent must b.e «o predominating as a motive as to give character to the structure. It must be so manifest and positive that the real .usefulness of the structure will be as manifestly subordinate and incidental. The law regards with jealousy all attempts to limit the use to which a man may put his own property. 'This right to use is always subject to the wholesome limitation .of the common law, that every one must so use his own property as not to injure another’s, and the person who violates this rule is liable to the person injured whether he has any malicious intent or not; but here the new principle is introduced, that the land owner may-erect no structure on his own premises, however lawful it would otherwise be, if he does it maliciously, with intent to annoy his neighbor. The common law has always regarded the existence of malice — 393 — in the exercise dr pursuit of one’s legal rights as of no consequence; just as its absence is of no consequence in the cases of injury caused by wrongful acts. The inquiry into and adjudication upon a man’s motives has always been regarded as beyond the domain of civil jurisprudence, which resorts to presumptions of -malice from a party’s acts instead of enquiring into the real inner workings of his mind. "When, therefore, we enquire how far a man was actuated by malice in erecting a structure upon his own land, we are enquiring after something that it will always be very difficult to ascertain, unless we adopt, as in other cases where the courts enquire after malice, a presumption of malice from the act done. And in this view of the matter we think no rule can be laid down that is on the whole more easy of application, and more likely to be correct in its application, than that the structure intended by the statute must be one which from its character, or location, or use, must strike an ordinary beholder as manifestly erected with a leading purpose to annoy the adjoining owner or occupant in his use of his premises. If the defendant has erected a house or block on his own land, so close to the dividing line between his lot and his neighbor’s as to darken the side windows of his neighbor’s house, no one would say that he had done a thing that was mainly intended to annoy his neighbor, and yet in his heart there may have been a malicious delight at the damage he was doing his neighbor. In such a case the obvious propriety of such an erection should determine the question in favor of the party making it, without putting him under oath as to his motives. In the same way, if a land owner should locate a privy or pig-sty directly on his line, and as close as possible to the near parlor windows of his neighbor, or should erect a rough screen of boards before his windows to darken them, the very character and location of the structures would strike every beholder as decisive evidence of an intent to annoy, and of this intent as an entirely predominant one; and a court might very properly so determine without leaving the case to rest on proof, gen — 394 — erally the party’s own oath, that there was no malice in the case. Applying this rule to this case it is very questionable whether any ordinary observer would not see, in the structure here complained of, one which the defendants might reasonably erect, as a proper means of exhibiting their own goods, and a proper use of the space in front of their store, which was theirs for every reasonable and legitimate use, and therefore one of which the plaintiff has no right to complain; while the intent to annoy the occupant of the plaintiff’s store, though found as a fact, and though without it the show-case might not have been procured, was really subordinate to the legitimate purpose. But whether or not an ordinary observer would have so regarded the structure, the court has here found as a fact, upon what evidence it does not appear, that the primary object of the defendants was the legitimate one of displaying their goods, and the intent to annoy the neighbor only a secondary one. And we think it therefore, considering all the circumstances, a case that falls within the line, which we do not attempt to define with exactness, that divides structures that the court .will not interfere with from those against which the statute intended to furnish a protection. There is a feature of this case that we ought perhaps to notice more particularly. The occupant of the plaintiff’s store and the defendants were rivals in business. It was the right of each not only to show his own wares to the best .advantage, but also to prevent the other from getting any advantage in the exhibition of his to which he was not legally entitled. While such competition in all business tends to' benefit the public, there are yet many things done in it that are by no means commendable, and which often belong to a low level of morality, but which are yet beyond the control of law. The act of the defendants in this case was, at the worst, of that character. So far as it was intended to annoy the occupant of the plaintiff’s store it was not so much from malice, as we ordinarily understand that term, and as we think it is to be understood in the statute, as from — 395 — a spirit of competition in business—of ill will perhaps—yet not so much against the object of it as an individual as against him as a rival in business. "We do not mean to say that such acts may not be carried so far as to fall within the condemnation of the statute, but we think that, to do so, they must as a general rule go quite beyond the petty hostilities of business competition. A question was made by the defendants whether the action could be maintained by the plaintiff, as owner of the premises, while the acts complained of were directed wholly against his lessee, who was occupying the store, and whose business, it was claimed, was injured by them. In the view we have taken of the case we have not thought it necessary to consider this question. We have treated the case as if the plaintiff had himself been the occupant. There is no error in the judgment complained of. In this opinion the other judges concurred.