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had been received. Scotland Co. v. Hill, 112 U. S. 183, | cal interest were necessarily subject to the State regu186.

lation, and whether that was wisely or unwisely euTwo questions are thus distinctly presented: First, acted, it was not a question which could come under whether a State can lawfully prohibit the manufac- ! the consideration of this court. The government creture of a healthy and nutritious article of food deated by the Constitution was not designed for the signed to take the place of butter, out of any oleagin regulation of matters purely local in their character. ous substance, or compound of the same, other than The States required no aid from any external authorthat produced from pure milk or cream, and its sale ity to manage their domestio affairs. It was only for when manufactured; and second, whether a State can matters which affected all the States, or which could without compensation to the owner prohibit the sale not be managed by them in their individual capacity, of an article of food, in itself healthy and nutritious, | or managed only witb great difficulty and embarrasswhich has been manufactured in accordance with its meut, and a general and common goverument was delaws. These questions are not presented in the opin. sired. ion of the court as nakedly and broadly as here stated, | Only such powers of internal regulation were therebut they nevertheless truly iudicate the precise points fore conferred as were essential to the successful and involved, and nothing else. Upon first impressions efficient working of the government established, to one would suppose that it would be a matter for con facilitate intercourse and commerce between the peogratulation on the part of the State that in the pro ple of different States, and to secure to them equality greys of science a means had been discovered by which of protection in the several States, and only such a new article of food could be produced, equally restraints were placed upon the action of the healthy and nutritious with, and less expensive than States as would prevent conflict with its authority, to oue already existing, and for which it could be used as secure the fulfillment of contract obligations, and ina substitute. Thauks and rewards would seem to be sure protection against punishment by legislative dethe natural return for such a discovery, and the in cree or by retrospective legislation. By the first section crease of the article by the use of the means thereby of the fourteenth amendment, which had its origin in encouraged. But not so thought the Legislature of the new conditions and necessities growing out of the the Commonwealth of Pennsylvania. By the enact late civil war, further restraints were placed upon the ment in question it declared that no article of food to power of the States in some particulars, a disregard of take the place of butter shall be manufactured out of which subjected their actiou to review by this court. any other oleaginous matter than that which is pro That section is as follows: "All persons born or natuduced from pure milk or cream, or be sold within its ralized in the United States, and subject to the jurislimits or kept for sale, under penalty of fine and im diction thereof, are citizens of the United States and prisonment.

of the State wherein they reside. No State shall make If the first question presented can be answered, as it or enforce any law which shall abridge the privileges has been by the court, in the affirmative, I do not see or immunities of citizens of the United States; nor why it is not equally within the competency of the sball any State deprive any person of life, liberty or Legislature to forbid the production and sale of a:y property without due process of law; nor deny to any new article of food, though composed of harmless in person within its jurisdiction the eqnal protection of gredients, and perfectly healthy and nutritious in its the laws.” It is the clause declaring that no State character; or even to forbid the manufacture and sale shall “deprive any person of life, liberty or property of articles of prepared food now in general use, such without due process of law" which applies to the as extracts of beef and condensed milk, and the like, present case. This provision is found in the Constituwhenever it may see fit to do so; its will in the mat tions of yearly all the States, and was designed to preter constituting the only reason for the enactment. vent the arbitrary deprivation of life and liberty, and The doctrine asserted is nothing less that the compe the arbitrary spoliation of property. As I said on a tency of the Legislature to prescribe, out of different former occasion, it means that neither can be taken, articles of healthy and nutritious food, what shall be or the enjoyment thereof impaired, except in the manufactured and sold within its limits, and what course of the regular administration of the law in the shall not be thus manufactured and sold. I have always established tribunals. It has always been supposed to supposed that the gift of life was accompanied with secure to every person the essential conditions for the the right to seek and produce food, by which life can pursuit of happiness, and is therefore not to be colle be preserved and enjoyed, in all ways not encroach- strued in a narrow or restricted sense. Ex parte Vir. ing upon the equal rights of others. I have supposed ginia, 100 U. S. 366. that the right to take all measures for the support of By “Jiberty” as thus used is meant something more life, which are innocent in themselves, is an element than freedom from physical restraint or imprisonof that freedom which every American citizen claims ment. It means freedom, not merely to go whererer as his birthright. I admit that previous to the adop one may choose, but to do such acts as he may judge tion of the fourteenth amendment of the Federal Con best for his interest not inconsistent with the equal stitution the validity of such legislation was to be de rights of others; that is, to follow such pursuits as termined by the Constitution of the State, and that may be best adapted to his faculties, and which will its tribunals were the authoritative interpreters of its give to him the highest enjoyment. As said by the meaning. This court could exercise no appellate jur Court of Appeals of New York in People v. Murx: isdiction over the judgments of the State courts in “The term 'liberty' as protected by the Constitumatters of purely local concern. Their judgments in tion, is not cramped into a mere freedom from physisuch cases were final and conclusive. If the legisla cal restraint of the person of the citizen, as by incartion of the State thus sustained was oppressive and un ceration, but is deemed to embrace the right of man just, the remedy could be found only in subsequent to be free in the enjoyment of the faculties with whicb legislation, brought about through the influence of ho has been endowed by his Creator, subject only to wiser views and a more enlightened policy on the part such restraints as are necessary for the common welof the people. From the structure of our dual govern fare." 99 N. Y. 386. And again in Re Jacobs: Libment, in which the United States exercise only such erty in its broad sense, as understood in this country, powers as are expressly delegated to them by the Con means the right, not only of freedom from actual serstitution, or necessarily implied, all others not pro vitude, imprisonment or restraint, but the right of one hibited to the States being reserved to them respect to use his faculties, in all lawful ways, to live and work ively or to the people, the great mass of matters of lo- | where be will, to earn bis livelihood in any lawful

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calling, and to pursue any lawful trade or vocation." the court said: “ These constitutional safeguards have 98 N. Y. 98.

been so thoroughly discussed in recent cases that it With the gift of life there necessarily goes to every would be superfluous to do more than refer to the one the right to do all such acts, and 'follow all such conclusions which have been reached bearing upon pursuits, not inconsistent with the equal rights of the question now under consideration. Among these others, as may support life and add to the happiness no proposition is now more firmly settled than that it is of its possessor. The right to pursue one's happiness one of the fundamental rigbts and privileges of every is placed by the Declaration of Independence among American citizen to adopt and follow such lawful inthe inalienable rights of man, with which all men are dustrial pursuit, not injurious to the community, as endowed, not by the grace of emperors or kings, or by he may see fit.” And referring to various decisions as force of legislative or constitutional enactments, but to the meaning of liberty, among which was one that by their Creator; and to secure them, not to grant the right to liberty embraces the right of man "to exthem, governments are instituted among men. The ercise his faculties and to follow a lawful vocation for right to procure healthy and nutritious food, by which the support of life," the court said: “Who will have life may be preserved and enjoyed, and to manufac the temerity to say that these constitutional principles tureit, is among those inalienable rights, which in my are not violated by an enactment which absolutely judgment no State can give, and no State can take prohibits an important branch of industry for the sole away, except in punishment for crime. It is involved reason that it competes with another, and may reduce in the right to pursue one's happiness. This doctrine the price of an article of food for the human race? is happily expressed and illustrated in People v. Marx, Measures of this kind are dangerous even to their procited above, where the precise question here was pre- moters. If the argument of the respondent in supsented. That case arose upon an indictment for a vio- | port of the absolute power of the Legislature to prolation of a provision of an act of the Legislature of New hibit one branch of industry for the purpose of proYork, entitled "An act to prevent deception in the tecting another with which it competes, can be sussale of dairy products," a section of which was almost tained, why could not the oleomargarine manufacideutical ia language with the first section of the act turers, should the obtain sufficient power to influence of the Legislature of Pennsylvania under consid or control the legislative councils, prohibit the manueration. The defendant was convicted by the Court facture or sale of dairy products? Would arguments of General Sessions of New York. The conviction then be found wanting to demonstrate the invalidity, was affirmed by the General Term of the Supreme under the Constitution, of such an act? The principle Court, and from that decision an appeal was taken to is the same in both cases. The numbers engaged upon the Court of Appeals, where the judgment was re- each side of the controversy cannot influence the Tersed. The court was of opinion that the object and question here. Equal rights to all are what are ineffect of the act, notwithstanding its title, was not to tended to be secured by the establishment of constisupplement existing provisions against fraud and de- tutional limits to legislative power, and impartial tricepi

nenus of imitation of dairy butter, but to | bunals to enforce them.” prohibit the manufacture and sale of any article which The answer made to all this reasoning and this decould be used as a substitute for it, however openly cision is that the act of Pennsylvania was passed in and fairly the character of the substitute might be the exercise of its police power; meaning by that term arowed and published, to drive the substituted arti- | its power to provide for the health of the people of cle from the market, and protect those engaged in the the State. Undoubtedly this power of a State extends manufacture of dairy products against the competi to all regulations affecting, not only the health, but tion of cheaper substances capable of being applied to the good order, morals and safety of society; but a the same uses as articles of food. At the trial, and on law does not necessarily fall under the class of police the argument of the appeal, the ground was taken, regulations because it is passed under the pretense of that if such were the case, the manufacture or sale such regulations, as in this case, by a false title, pur. of any oleaginous compound, however pure and whole. | porting to protect the health, and prevent the adultersome, as an article of food, if it was designed to take ation of dairy products, and fraud in the sale thereof. the place of dairy butter, was by that act made a It must have in its provisious some relation to the end crime; and the court said: “The result of the argu to be accomplished. If that which is forbidden is not ment is, that if in the progress of science a process is injurious to the health or morals of the people, if it discovered of preparing beef tallow, lard or any other does pot disturb their peace or menace their safety, it oleaginous substance, and communicating to it a pala derives no validity by calling it a police or health law, table flavor, so as to render it serviceable as a substi Whatever name it may receive, it is nothing less than tute for dairy butter, and equally nutritious and valu an unwarranted interference with the rights and the able, and the article can be produced at a compara liberties of the citizen. tively small cost, which will place it within the reach of In Re Jacobs the law possed was entitled “An act to those who cannot afford to buy dairy butter, the ban of | improve the public health by prohibiting the manuthis statute is upon it. Whoeverengages in the business facture of cigars and preparation of tobacco in any of manufacturing or selling the probibited product is | form in tenement houses in certain cases, and reguguilty of a crime; the industry must be suppressed; lating the use of tenement houses in certain cases." those who could make a livelihood by it are deprived It prohibited the manufacture of cigars or preparaof that privilege; the capital invested in the business tion of tobacco in any form on any floor, or in any must be sacrificed ; and such of the people of the State part of any floor, in any tenement house, if such floor, as cannot afford to buy dairy butter must eat their or part of such floor, was occupied by any person as a bread uubuttered."

home or residence for the purpose of living, sleeping, Aud after referring to the State Constitution, which cooking or doing any household work therein; and de. provides that no member of the State shall be dis- | clared that every person who was guilty of a violation franchised, or be deprived of auy of the rights and of the act, or of having caused another person to comprivileges secured to any citizen thereof, unless by the mit such violation, should be deemed guilty of a mislaw of the land, or the judgment of his peers; and tu demeanor, and punished by a fiue of not less than $10 the clause which declares that do person shall be de- ! por more thau $100, or by imprisonment for not less prived of life, liberty or property without due process than ten days mor more than six months, or by both of law; and to the first section of the article of the such fine and imprisonment. The tenement house fourteenth amendment of the Federal Constitution - used had four floors, and seven rooms on each floor, the rigbt to sell and dispose of such article, as well as houses. Avers that they are an intolerable puisance; to use and enjoy it. Any act which declares that the that by their existence light and air are prevented owner shall neither sell it nor dispose of it, nor use from freely entering his houses, the view from the and enjoy it, confiscates it, depriving biin of his prop windows is wholly obstructed and cut off, the looks erty without due process of law. Against such arbi and appearance of the houses greatly injured, their trary legislation by any State the fourteenth amend desirability as homes greatly lessened, their rental ment affords protection. But the prohibition of sale value depreciated, and their actual market value rein any way or for any use is quite a different thing duced more than $500. Prays that said soreens may from a regulation of the sale or use so as to protect the be abated as a nuisance and a perpetual injunction health and morals of the community."

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and each floor was occupied by one family, living in- judge, and thereby give effect to the Constitution."
dependently of the others, and doing its cooking in Mugler v. Kansas, 123 U. S. 623, 661.
one of the rooms thus occupied. Jacobs was engaged In Watertown v. Mayo the Supreme Court of Massa-
in one of his rooms in preparing tobacco and making chusetts, speaking of the police power of the State,
cigars, but there was no smell of tobacco in any part of said: “The law will not allow rights of property to be
the house except in that room. For this violation of invaded under the guise of a police regulation for the
the act he was arrested. A writ of habeas corpus sued preservation of the health, or protection against a
out in the court below for his discharge was dismissed threatened nuisance; and when it appears that such
at the Special Term of the Supreme Court. On ap is not the real object and purpose of the regulation, the
peal to the General Term this order was reversed, and courts will interfere to protect the rights of citizens."
the case was taken to the Court of Appeals. There the 109 Mass. 315, 319.
claim was made that the Legislature passed this act in It would seem that under the Constitutions of the
the exercise of its police power; but the court said in States no Legislature should be permitted, under the
answer: “Generally it is for the Legislature to deter pretense of a police regulation, to encroach'upon any of
mine what laws and regulations are needed to protect the just rights of the citizen intended to be secured
the public health and secure the public comfort and thereby. Be this as it may, certain it is that no State
safety; and when its measures are calculated, in- can, under any pretense or guise wbatever, impairany
tended, convenient and appropriate to accomplish such rights of the citizen which the fundamental law
these ends, the exercise of its discretion is not subject of the United States bas declared shall neither be de-
to review by the courts; but they must have some re stroyed nor abridged. Were this not so, the protec-
lation to these ends. Under the mere guise of police tion which the Constitution designed to secure would
regulations, personal rights and private property can be lost, and the rights of the citizen would be subject
not be arbitrarily invaded, and the determination of to the control of the State Legislatures, which would
the Legislature is not final and conclusive. If it passes in such matters be practically omnipotent. What
an act ostensibly for the public health, and thereby | greater invasion of the rights of the citizen can be con-
destroys or takes away the property of a citizen, and ceived than to prohibit him from producing an article
interferes with his personal liberty, then it is for the of food, conceded to be healthy and nutritious, out of
courts to scrutinize the act, and see whether it really designated substances, in themselves free from any
relates to and is convenient and appropriato to pro. deleterious ingredients? The prohibition extends to
mote the public health. It matters not that the Leg the manufacture of an article of food out of any ole-
islature may, in the title to the act, or in its body, de- aginous substances, or compounds of the same, not
clare that it is intended for the improvement of the produced from milk or cream, to take the place of but-
public health. Such a declaration does not conclude | ter or cheese. There are many oleaginous substances
the courts, and they must yet determine the fact de- | in the vegetable as well as in the animal world besides
clared, and enforce the supreme law."

milk and cream, but out of none of them shall any
And the court concluded an extended consideration citizen of the United States within the limits of Penn-
of the subject by declaring that when a health law is sylvania be permitted to produce such an article of
challenged in the courts as unconstitutional, on the food for public consumption. Only out of pure milk
ground that it arbitrarily interferes with personal lib. or cream shall that article be made, notwithstanding
erty and private property without due process of law, the vast means for its production furnished by the
the court must be able to see that it has in fact some vegetable as well as tbe animal kingdom. The full
relation to the public health, that the public bealth is | force of the doctrine asserted will be apparent is the
the end aimed at, and that it is appropriate and | extent is considered to which it may be applied. The
adapted to that end; and as it could not see that the prohibition may be extended to the manufacture and
law in question, forbidding the cigar-maker from ply- sale of other articles of food, of articles of raiment
ing his trade in his own room in the tenement bouse, and fuel, and even of objects of convenience. Indeed
when allowed to follow it elsewhere, was designed to there is no fabric or product the texture or ingredients
promote the publio health, it pronounced the law ull of which the Legislature may uot proscribe by inhibit.
constitutional and void. If the courts could not in ing the manufacture and sale of all similar articles not
such cases examine into the real character of the act, composed of the same materials.
but must accept the declaration of the Legislature as The answer to the second question is equally conclu-
conclusive, the most valued rights of the citizen would sive against the decision of the court. Iu prohibiting
be gubject to the arbitrary control of a temporary ma- 1 tbe baie of the article which had been manufactured
jority of such bodies, instead of being protected by the by the defendant pursuant to the laws of the State, the
guaranties of the Constitution. In the recent prohibi- Legislature necessarily destroyed its mercantile value.
tion cases from Kansas this court, after stating that it | If the food could not be used without injury to the
belonged to the legislative department to determine health of the community, as would be the case per-
primarily what measures are appropriate or needful baps if it had become diseased, its sale might not only
for the protection of the public morals, the public | be probibited, but the article itself might be de-
health or the public safety, added: “It does not at all stroyed. But that is not this case. Here the article
follow that every statute enacted ostensibly for the | was healthy and nutritious, in no respect injuriously
promotion of these ends is to be accepted as a legiti affecting the health of any one. It was manufactured
mate exercise of the police powers of the State. There | pursuant to the laws of the State. I do not, therefore,
are, of necessity, limits beyond which legislation can think the State could forbid its sale or use--clearly
not rightfully go. * * * The courts are not bound not without compensation to the owner. Regulations
by mere form, nor are they to be misled by mere pre of its sale, and restraints against its improper use un-
tenses. They are at liberty-indeed are under a solemn doubtedly could be made, as they may be made with re-
duty-to look at the substance of things whenever spect to all kinds of property; but the prohibition of
they enter upon the inquiry whether the Legislature lite use and sale is nothing less than confiscation. As
has transcended the limits of its authority. If there. I said in Bartemeyer v. Iowa, 18 Wall. 137, with refer-
fore a statute purporting to bave been enacted to pro- ence to intoxicating liquors, su I say with reference to
tect the public health, the public morals, or the public this property, I bave no doubt of the power of the
enfety bas no real or substantial relation to those ob. I State to regulate its sale when such regulation does
jects, or is a palpable invasion of rights secured by the not amount to the destruction of the right of property
fundamental law, it is the duty of the courts to so ad- in it. “The right of property in an article involves

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allowed against a continuation or renewal of the same. The fault which I find with the opinion of the court The court below granted the prayer of the complainon this bead is that it ignores the distinction between ant's bill. regulation and prohibition.

These screens are erected entirely upon the lot of the defendant, and he appeals to this court, claiming

that he has a perfect right to erect and maintain EASEMENTS-LIGHT AND AIR-MALICIOUS them, and that the question of his motives has nothOBSTRUCTION.

ing to do with the legal aspects of the case, though he

disclaims any malice against complainant. It must be MICHIGAN SUPREME COURT, APRIL 20, 1888.

taken for granted, in discussing tbis case, tbat these

screens were not erected for the purposes of a fence or BURKE V. SMITH.

for any other necessary, useful or ornamental purpose.

The pretense that they were built to keep prying eyes A fence erected maliciously, and with no other purpose than from observing what was going on in the houses or to shut out the light and air from a neighbor's window, is

yard of the defendant is not supported by the proofs. a nuisance.

The evidence is clear to my mind that malice alone Hampden Kelsey, for appellant.

entered into the reason and motive of their erection.

The proofs are conclusive upon this subject. It is adGeorge M. Buck, for appellee.

mitted by the counsel for the complainant that he MORSE, J. The parties to this suit own adjoining would have no redress had the defendant erected lots in the city of Kalamazoo. The complainant built houses or useful buildings or structures as near to two dwelling-houses on his lot for the purposes of complainaut's line as these screens are, even though rental. One house fronts on Park street; the other the consequent damage of such erection would have upon Osborn street. These houses came up within been as great or greater than it has been and now is about two feet of the line between him and the de from the effect of these screens upon the dwellings of fendant. Wben the houses were built. Smith bad a complainant in every respect here complained of. But house on his lot fronting on Park street, with room

his coutention is that these screens being a damage to for a drive-way between his house and complainant's the houses of complainant, and being erected for no premises. About the time complainant erected his | good or useful purpose, but with the malicious mohouses, Smith built a house on his lot fronting on tive of doing injury, they become and are such a nuiOsborn street. Complainant's houses were about sance to the property of complainant that equity will fourteeu feet front, with a single tier of rooms run cause their removal and enjoin their future erection ning back from the street. These parties got into a or continuance. He invokes the legal maxim that quarrel, and as a result of petty annoyances on both "every man in the use of his own property must avoid sides, the defendant finally put up a screen or fence in injury to his neighbor's property as much as possifront of the lower side windows of the complainant, ble; ” and argues, that while it is true that when one as it is claimed, covering, obscuriug and darkening the

pursues a strictly legal right his motives are immatesame, and shutting out the light and air therefrom. rial, yet no man has a right to build and maintain an The evidence shows these screens to be two in num:

| entirely useless structure for the sole purpose of inber and about eleven feet high, coming up to the top

juring his neighbor. The argument has force, and of the lower windows of complainant's houses. They

| appears irresistible in the light of the moral law that were built by setting posts in the ground and nailing

ought to govern all human action. And the civil law, boards against them. They were open at the bottom coming close to the moral law, declares that “he who, below the windows. I think it is established by the in making a new work upon his own estate, uses his evidence that these screens were not put up for a right without trespassing either against any law, cug. tence or any other necessary or useful or ornamental

| tom, title or possession which may subject him to any purpose, but simply to shut out the view of defend service toward his neighbors, is not answerable for the ant's premises from complainant's windows. Smith damages which they may chance to sustain thereby, claims that he did not wish the occupants of com

unless it be that he made that change merely with a plainant's houses to gaze into his windows or to wit view to hurt others without advantage to himself." ness the getting out of and into carriages of his family

Thus the civil law recognizes the moral law, and does at the horse block beside the drive-way, and for that not permit the owner of land to do an act upon his reason put up these barriers. There is plenty of evi- own premises for the express purpose of injuring his dence that when he was erecting these screens he said neighbor, when the act brings no profit or advantage he was doing it to shut the light out of Burke's win- | to himself. The law furnishes redress, because the indows. I think there was nothing but malice in his l jury is malicious and unjustifiable. The moral law motives. The complainant files his bill of complaint | imposes upon every man the duty of doing unto alleging the ownership, value and use of the property | others as he would that they should do unto him; and belonging to him: the desirability of these houses for the common law ought to, and in my opinion does rerental to families being averred as constituting their quire him to so use his own privileges and property as chief value. He alleges that these screens were un not to injure the rights of others maliciously and necessarily erected from malicious motives and for the without necessity. It is true that he can use his own express and avowed purpose of darkening the windows property, if for his own benefit or advantage, in many or bir two houses and cutting off the light from enter- | cases to the injury of his neighbor; and such neighbor ing the windows of said houses, obstructing the view | has no redress, because the owner of the property is from them, and thereby injuring the value of the exercising a legal right which infringes on no legal

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right of the other. Therefore and under this princi: property, even to the detriment or total obstruction ple the defendant might have erected a building for of air and light from his windows, if such windows are useful or ornamental purposes and shut out the light | so near the premises of his neigbbor that his building and air from complainaut's windows; but when he upon his laud will darken or destroy them. Such be. erected these “screens" or "obscurers " for no useful ing the law here, the reason for the decision in Mahan or ornamental purpose, but out of pure malice against v. Brown does not exist in and can bave no applicahis neighbor, it seems to me a different principle must tion to the case under consideratiou. This ruling in prevail. I do not think the common law permits a | Mahan v. Brown is followed in Phelps y. Nowlen, 72 man to be deprived of water, air or light for the mere N. Y. 39; Chatfield v. Wilson, 27 Vt. 671; Walker v. gratification of malice. No one has an exclusive Cronin, 107 Mass. 555, and many other cases. In a property in any of these elements except as the same well-reasoned case in 74 Me. 164 (Chesley v. King), the may exist or be confined entirely on his own premises. authorities are reviewed, and the court reach the conIf a pond of water lies entirely within his lands, with olusion “that it cannot be regarded as a maxim of out inlet avd outlet, he may do with it as he pleases uuiversal application that malicious motives cannot while he keeps it upon his own premises. He may also make that a wrong which in its own essence is lawuse as he pleases what air or light he can keep and ful." In that case the defendant dug a well upon his hold within his dominion upon his own lands. But to own land, which cut off the sources of supply from a the air and light between the earth and the heaveus spring upon plaintiff's premises. There was a special the right of each man is more or less dependent upon finding that defendant dug the well for the “mere, that of his neighbor. His neighbor must bear the iu. l sole and malicious purpose of diverting the veins of convenience and annoyance that the legal and bene. water wbich supplied the spring, and not for the purficial use of his premises engenders in this respect, if pose of procuring a better supply of water for himself buch use falls short of what the law treats as a nuis and improving his estate.” The Supreme Court found ance; but the right to use one's premises to shut out that this special finding was not supported by the evior curtail the use of either of these elements by his denoe, but they take issue witb the doctrine of Phelps neighbor, out of mere malice and wickeduess, when v. Nowlen, 72 N. Y. 39, and Chatfield v. Wilson, 27 Vt. such use is not beneficial to him in any seuse, does not 671, and hold, in substance, that if the special fiuding exist in law or equity. The complainant in this case had been true, the plaintiff's action would have been had a right to the use of the air and light about his sustained. I am satisfied that the decree of the court houses and over defendant's lands until such right below in this case is just and equitable and can be suscame iu couflict with the defendant's enjoyment of tained, if not by the weight of authority, by the better his property. This air and light was free and uncon reason and the best authority. In Chasemore v. Richfined and the common property of all.

ards, 7 H. L. Cas. 387, 388, the court, in laying down The leading case relied upon by the defendant, and the rule that the owner of land has a right to the enwhich has beeu followed by the courts of several of the joyment of the land and to the underground water States, is Mahan v. Brown, 13 Wend. 261. The action upon it, and that he may, in order to obtain that was brought for the obstruction of lights. It was water, sink a well to the injury of his neighbor, averred that the defendant had wantonly and mali. qualify the rule by saying that "it seems right to hold ciously erected near to and in front of plaintiff's wine that he ought to exercise his right in a reasonable dows a fence of the height of fifty feet, without benefit manner, with as little injury to his neighbor's rights or advantage to himself and for the sole purpose of | as may be," and allude to the fact that the civil law anuoying plaintiff, by means whereof her house was "deems an act, otherwise lawful in itself, illegal if greatly darkened, and the light and air obstructed done with a malicious intent of injuring a neighbor from entering the same through the windows, render animo vicino nocendi." In Greenleaf v. Francis, 18 ing the house uninhabitable, so that her boarders had | Pick. 117, it is said: “These rights should not be exleft her, and her apartments were untenanted, etc. ercised from mere malice." See also Wheatley v. This fence was built, as the screens in this case were, Baugh, 25 Penn. St. 528; Roath v. Driscoll, 20 Cond. by the defendant under the pretense of preventing his 533; Trustees v. Youmans, 50 Barb. 316, 320; Panton yard from being overlooked by the windows of the v. Holland, 17 Johns. 92, 98; Haldeman v. Bruckhart, plaintiff's house, but in fact from mere malice, and 45 Penn. St. 514. In an Ohio case the query is raised, with the intent to exclude the light and air from the but not answered, whether if a hole was dug upon windows of the plaintiff. The court, Savage, C. J., one's premises to the damage of his neighbor, “from delivering the opinion, held that a person who makes motives of unmixed malice, without any object, and a window in his house overlooking the privacy of his when done, incapable of answering any end, either of neighbor does an act which strictly he has no right to ornament, convenience or profit, connected with the do, although it is said no action lies for it. “He is enjoyment or use of his property," an action would therefore encroaching, though not strictly and legally not lie for the injury. Frazier v. Brown, 12 Ohio St. trespassing upon the rights of another. He enjoys an 294, 304. Mr. Cooley, in his work on Torts, in speakeasement therefore in his neighbor's property, which iug of nuisances, says: “If a discomfort is wantonly iu time may ripeu into a right. But before sufficient caused from malice or wickedness, a slight degree of time has elapsed to raise a presumption of a grant he inconvenience may be sufficient to render it actionhas no right and can maintain no action for being de- able." Cooley Torts, 596. Mr. Washburn, in his treatprived of that easement, let the motive of deprivation ise on Easements, quotes with favor the doctrine as to be what it may; and the reason is that in the eye of rights in the use of water laid down in Wheatley y. the law he is not injured. He is deprived of no right, Baugh, supra: “Neither the civil nor the common but only prevented from acquiring a right, without law permits a man to be deprived of a spring or stream consideration, iu his neighbor's property." The time of water for the mere gratification of malice. * * * fixed for acquiriug this right or easement in the opin The owner of land on which a spring issues from the ion is twenty years. I apprehend that at this late day earth has a perfect right to it against all the world, exthis is not the law in Michigan and that it never was. cept those through whose lands it comes. He has even A man here has a right to build a window in his house a right to it against them until it comes in couflict overlooking his neighbor's land, and he gets or gains with the enjoyment of their right of property.” no easement in his neighbor's property by so doing; Washb. Easem. (3d ed.) 487, 488. I cannot see why this and no lapse of time will make his right "ancient,” or principle does not apply with equal force to air and prevent his neighbor from the beneficial use of his light, which are more free and less capable of confine

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