#### LANDIS H. WELSH and wife, MARGARET W. WELSH v. LEON M. TODD and wife, MITTIE J. TODD.

(Filed 20 November 1963.)

1. Nuisance § 1—

A fence which is of no beneficial use to the owner and which is ejected and maintained by him solely for the purpose of annoying a neighbor is a spite fence and may be abated subject to the same equitable principles which govern injunctive relief generally.

2. Same— Whether fence was spite fence held question for jury on evidence in this case.

Evidence that defendants erected on their land a windbreak fence some four feet high along that portion of that side of their lot which did not adjoin plaintiffs’ lot and that the fence was some seven and one-half feet high adjacent to plaintiffs’ land, .that the fence damaged plaintiffs’ lot hy interfering with the view and breeze, with evidence of animosity on the part of defendants, and that the additional height along plaintiffs’ property served no useful purpose but was solely from a .vengeful and malicious motive, is held to take the case to the jury ion the crucial question of whether the fence in fact served any purpose beneficial to defendants in the legitimate use and enjoyment of their property or whether defendants in good faith reasonably believed it did so.

Appeal by plaintiffs from Parker, J., May 1963 Session of New HANOVER.

Action to abate an alleged.' “spite fence” and to. recover damages for its erection and maintenance. Plaintiffs offered evidence tending to show the following facts:

Plaintiffs Welsh and defendants Todd own adjoining water front lots in the Ocean View Subdivision on Middle Sound in Neiw Hanover County. The Welsh lot is fifty feet wide 'and runs southeasterly from Trinity Avenue to the center line of the Intraooastal Canal. Plaintiffs’ northern line is contiguous to' defendants’ southern boundary, but the Todd lot extends northwesterly one hundred and four feet beyond the rear of plaintiffs’ lot. The Todd house was erected sometime before plaintiffs built theirls in June 1960. Plaintiffs’ house is situated about five feat from their north property line. Defendants' front porch is forty or fifty -feet to the rear of plaintiffs’ back porch which is approximately thirty feet from the plaintiffs’ western' boundary. The Welsh front parch is about eighteen feat from a steep bluff in the eastern line of the property. The Sound lis a short distance from the bluff and the Inland Waterway courses generally north and south approximately one hundred feet out in the Sound.

In April 1962 the defendants erected a web fence along their southern boundary. This type fence is commonly used ais a windbreak. It *528consists of small concrete posts and interwoven boards of western cedar. From /tihe ¡western end of defendants’ lot to the western end of plaintiffs’ property the fence is only four feet high; from the western end of plaintiffs’ lot to the bluff, ¡a distance of one hundred and nineteen feet, the fence is sevan^ and a half feet high.

Plaintiffs’ boose obstructs the defendants’ view of the Sound from their front porch to. the south and east. The defendants’ fence inf erupts plaintiffs’ view of the Inland Waterway to the north for over a mile. It also interferes with their view of the Sound to the northeast and cots off the breeze from the north and mortheaisit. Directly in front of their boose, from the end of the fence, plaintiffs' still have an open view across 'the Sound. In the opinion of an expert realtor, ¡the erection of ¡the fence has depreciated the value of plaintiffs’ property .four thousand dollars.

During the construction of the fence Mr. Welsh ¡complained to Mr. Todd that the fence was ¡blocking his view. Mr. Todd’s reply was, “You blocked my view ¡and I am going to¡ block yours.” On another occasion Mr. Welsh asked him why he did not add a “couple more ¡boards” to the height of the fence. Todd replied that he ¡thought 'he had the ¡fence high enough to serve his purpose. Before ¡the defendants erected the fence plaintiffs had installed a flood light at the rear of their bouse on the end farthest from the Todd property. Between the light and the Todd bouse there is a ten-foot wide cedar and a large ¡shrub. Welsh denied that it was aimed at the defendants’ bouse or .that it was kept burning all of the time.

At the close of plaintiffs’ evidence, defendants’ motion for judgment of nonsuit was allowed and plaintiffs appealed.

J. C. Wessell, Jr. and Carr ■& Swails for plaintiff appellants.

William K. Rhodes, Jr., for defendant appellees.

SHARP, J.

Since the decision in Barger v. Barringer, 151 N.C. 433, 66 S.E. 439, it has been, ¡established law in this State that a spite fence is a private nuisance. A spite fence is one which is of no ¡beneficial use to the owner ¡and which is erected ¡and maintained solely for the purpose of ¡annoying ¡a neighbor. It may be abated, subject to ¡the same equitable principles which govern injunctive relief generally, ¡and damages recovered if ¡any have ¡been sustained. Burris v. Creech, 220 N.C. 302, 17 S.E. 2d 123; 22 Am. Jur., Fences, §§ 43, 46; Annot., Spite Fences, 133 A.L.R. 691, 720.

Plaintiffs’ evidence, viewed in ¡the light most favorable to. them, permits the inference that ¡the fence, constructed to ¡a height of seven *529'amid' a half .feat 'along the property lime, serves mo. useful purpose and itlhait defendants erected it solely to satisfy a vengeful and malicious motive to injure plaintiffs. Therefore, the motion for nonsuit was improvidently granted. Whether the fence does in fact serve any purpose beneficial to tlhe defendants in the legitimate use and enjoyment of tlheir property or whether defendants erected it in good faith reasonably believing that it would perform a useful function are questions for the jury.

Counts have denied equitable relief where the walls and fences complained of screened a defendant’s premises from objectionable noises, odors, and unseemly conduct on the plaintiff’s property. Stroup v. Rauschelbach, 217 Mo. App. 236, 261 S.W. 346; Daniel v. Birmingham Dental Mfg. Co., 207 Ala. 659, 93 So. 652; D’Inzillo v. Basile, 40 N.Y.S. 2d 293.

On cross-examination, Mr. Welsh testified that ¡he bad erected a flood light on the rear of bis house. However, the answer contains no allegation that defendants constructed the fence to shield their premises from such a light or from any obj ection'al .conduct -whatever on the part of tlhe plaintiffs. Defendants merely admit -the erection of the fence 'and stand upon their rights ais .property owners to maintain it. A jury must determine whether this fence comes within the protection of those rights.

The judgment of nonsuit is Reversed.