#### L. M. BURRIS v. GROVER CREECH et al.

(Filed 5 November, 1941.)

1. Nuisance § 3—

Allegations and evidence to the effect that defendant erected a solid sheet metal fence seven feet high on his land, which shut out tlie light, air, and view from plaintiff’s house on the adjoining property, and that the fence was of no beneficial use to defendant, but was erected and maintained solely for the purpose of annoying plaintiff, is held sufficient to take the case to the jury and to warrant an abatement of the nuisance under authority of Barger v. Barringer, 151 N. C., 433.

2. Nuisance § 4—

Where plaintiff establishes a cause of action to abate a “spite fence,” but fails to show any personal pecuniary loss sustained by him up to the time of the institution of the action, plaintiff is not entitled to recover damages notwithstanding evidence that the value of his property was depreciated by the erection of the fence, since such depreciation in value would be obviated by the abatement of the nuisance and would be' germane only if defendant acquired a permanent easement for the maintenance of the fence.

3. Damages § 7—

Where plaintiff establishes that defendant erected a “spite fence,” entitling plaintiff to have the nuisance abated, but fails to prove any actual .pecuniary damage to himself resulting up to the time of the institution of the action, the submission of an issue of punitive damages is error.

Appeal by defendant, Grover Creech, from Clement, J., at June Term, 1941, of Cababbtjs.

Civil action to recover damages for an alleged malicious injury and to abate a nuisance.

The defendants, as tenants by the entirety, own a corner lot in the city of Concord which fronts on Buffalo Street and runs along Anne Street about 128 feet. There is a storehouse on the front of the lot extending hack about forty feet and the rest of the lot is vacant.

The plaintiff and his wife, as tenants by the entirety, own an adjoining lot which fronts on Buffalo Street and runs back about the same distance as defendants’ lot. There is a storehouse on the front of this *303lot and a tenant dwelling bouse in the rear with a driveway from Buffalo Street to tbe dwelling bouse.

Tbe vacant portion of defendants’ lot lies between Anne Street and tbe dwelling bouse on tbe rear of plaintiff’s lot. Tbis dwelling bouse is 20 or 211/a feet from tbe dividing line of tbe two properties.

In February, 1941, tbe defendant, Grover Creecb, erected along tbe dividing line and extending from tbe rear of bis storehouse to tbe end of bis lot, a solid sheet metal fence approximately 72 feet long and 7 feet high, which shuts out tbe light, air and view of plaintiff’s bouse and causes tbe sunlight, at certain hours of tbe day, to be reflected on plaintiff’s bouse to tbe annoyance and inconvenience of tbe occupants. On tbe allegations of tbe complaint, the plaintiff characterizes it as a “spite fence.”

There is evidence tending to show ill will or anger on tbe part of Grover Creecb toward tbe plaintiff, and that be erected tbe fence in question for tbe sole purpose of injuring bis neighbor. Tbe defendant testified that be built tbe fence to keep garbage trucks and trespassers from going across bis land.

Tbe plaintiff offered evidence tending to show that tbe market value of bis property has been adversely affected from $300 to $600 by tbe erection of tbe fence.

Plaintiff’s tenant testified that she paid a monthly rent of $15 before tbe erection of tbe fence and that she has continued to pay tbe same amount of rent since its erection.

Tbe jury returned tbe following verdict:

“1. Was tbe sheet metal fence referred to in tbe pleadings erected by tbe defendant, Grover Creecb, out of malice and for tbe sole purpose of injuring tbe plaintiff in tbe use of bis property? Answer: 'Yes.’

“2. What amount, if any, of actual damages is tbe plaintiff entitled to recover of tbe defendant, Grover Creecb? Answer: '$258.00.’

“3. What amount, if any, of punitive damages is tbe plaintiff entitled to recover of tbe defendant, Grover Creecb? Answer: '$465.00.’”

From judgment on tbe verdict that plaintiff recover ’ tbe damages assessed, tbe defendant appeals, assigning errors.

R. Furman James for plaintiff, appellee.

Harisell & Hartsell for defendants, appellants.

Stacy, C. J.

Tbe law as it pertains to a “spite fence” was thoroughly pounded and hammered by tbis Court in Barger v. Barringer, 151 N. C., 433, 66 S. E., 439. Nothing can be added to tbe discussion there bad by Brown and Uolce, JJ., tbe one speaking for tbe majority, tbe other for tbe minority. 'The subject was exhausted in that debate. Tbe case was *304later distinguished in Bell v. Danzer, 187 N. C., 224, 121 S. E., 448. See 22 Am. Jur., 546; 11 R. C. L., 877; Hornsby v. Smith, 13 S. E. (2d), 20, 113 A. L. R., 684.

Without undertaking to thrash over old straw, or “to beat the same old brush with the same old stick to run out the same old rabbit for another chase,” as the late Justice Brogden would say, Meece v. Com. Credit Co., 201 N. C., 139, 159 S. E., 17, perhaps it is enough to observe that the present facts appear to be sufficient to carry the case to the jury on the first issue under authority of the Barger decision, and to warrant an abatement of the nuisance. The complaint follows the definition of a “spite fence,” i.e., that it is of no beneficial use to the owners and was erected and is maintained by them solely for the purpose of annoying the plaintiff. 22 Am. Jur., 546.

The answers to the second and third issues are not supported by the record. There is no evidence that the plaintiff has suffered any pecuniary loss or personal discomfort, albeit his tenant may have been annoyed or inconvenienced. True, there is testimony to the effect that the market value of plaintiff’s property has been affected by the fence in question, but this is on the theory of a permanent easement. An abatement of the nuisance would alleviate the damage, and no intervening loss has been established. Moreover, plaintiff’s wife, as one of the tenants by the entirety, wuuld be a desirable, if not a necessary party, where an easement is to pass on the payment of permanent damages. Hooker v. R. R., 156 N. C., 155, 72 S. E., 210.

It is not thought the case is one in which punitive damages should be awarded. Worthy v. Knight, 210 N. C., 498, 187 S. E., 771; 22 Am. Jur., 548.

It results, therefore, that the second and third issues will be stricken out and an order of abatement entered on the answer to the first issue. Judgment accordingly.

Error and remanded.