Ladd v. Flynn

Long, J. This bill was filed to obtain the abatement of a line fence erected by defendant, and to perpetually enjoin him from erecting or maintaining a similar one. The bill alleges that the parties were the owners of adjoining lots on Eighteenth street, in Detroit. Complainant’s house stands within one foot of the line, and defendant’s house about the same distance from the line on the other side. Defendant built a board fence between them, 16 feet high, shutting off the light from complainant’s windows, who claims this was done maliciously. An answer was filed, admitting the building of the fence, but denying that defendant’s motive was malicious; and averring that the fence was built to screen the defendant’s tenants from view, and unpleasant observation and comment from the family of complainant’s tenants. The answer was sworn to. Annexed to the bill and answer were several affidavits. Complainant, upon the filing of the bill,, had entered a motion for a preliminary injunction. This motion was heard, and an order made by Judge Brevoort, one of the judges of the Wayne circuit court, in chancery, granting an injunction, and commanding the defendant to abate the nuisance instanter,— “And that the said defendant, do at once take down or remove said screen or fence, and that said screen or fence be not renewed, rebuilt, or continued, and that all interference thereby with the enjoyment of the premises of said complainant do perpetually cease.” [183] Upon this order an injunction was issued as directed by the order. Defendant appeals from the order. We do not pass upon the merits of the controversy. The order is appealable, as it attempts to interfere with the defendant’s claimed rights, and to abate the fence. The court had no power to determine the rights of the parties on affidavits or on a motion for preliminary injunction. This could only be done on final hearing. The order appealed from must be reversed, and the injunction set aside, with costs. The other Justices concurred.