Wallfare

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A rich variety of fences is one of the many charms of the American landscape: the wooden rail fence of the rural Midwest and South and the picket fence of the town, crude barbed wire surrounding prairie fields and ornate iron palings protecting village lawns, the New England stone wall running through abandoned farmland grown back to forest and the chain-link barrier screening weed-infested lots in the downtown fringe. Another classic American type is defined not by form but by function. Yet because its form follows its function with a rigor that Louis Sullivan would have admired, it is as easy as the others to recognize. Its purpose is summed up in its name: the spite fence. It is meant to irritate and to harm, blocking the light and air and obstructing the view from the windows of a neighboring house, making that property’s occupation less pleasant and its rental or resale less lucrative. A spite fence presses as close to its target building as property boundaries will allow, ideally fitting roof-high against it as snugly as the side of a packing crate. It is a bad fence made by a bad neighbor, an iron (or wooden, or steel, or concrete) curtain drawn across the front line of a local cold war.

 

Though easily spotted, a spite fence today is rarely seen. If familiar fence types are as common as oaks and maples, as sparrows and robins, it is one of those rare species that one is likely to know only from books and can hardly ever hope to encounter in the field. Spite fences were never ubiquitous elements of the American scene, but there was a time when they were not so scarce. As recently as 1921 New York City alone numbered them in the hundreds. If they have gone from such modest abundance to near extinction today, it is in part because the law has been enlisted against them. Boundary features in the landscape, they long pressed up against a legal boundary as well, the one separating malicious activities that the law tolerates from those it forbids. A century’s resurveying of that line has put them clearly on the latter side.

What remains a widespread, though outdated, bit of folk legal doctrine was indeed the law of the land as late as the Civil War: That whatever I choose to build on my property is my own damn business and nobody else’s, even if harming others is my sole reason for building it. A pioneering Connecticut statute of 1867 banning spite structures of any kind was the first exception. By the late 1880s change was under way. Several more New England legislatures declared unnecessarily high fences built solely to annoy neighbors abatable nuisances. A second weapon took shape at the same time: In 1888 Michigan’s highest court in the case of Burke v. Smith upheld the claim that such fences were nuisances according to the common law even if no statute specifically forbade them.

Massachusetts legislators, before passing a spite-fence law, heard testimony on a number of examples. The owner of two lots adjoining an African-American church in Springfield had put up a fence on each side “as high as the eaves…within 18 inches of the building, painted black on the side toward the church,” obliging the parishioners “to use lamps at midday.” The fences had stayed in place for almost twenty years. Right and wrong in the Michigan case were not so readily assigned. The building of the screen in question and the lawsuit to force its removal only crowned a long quarrel between the Burkes and the Smiths and the repeated infliction of “petty annoyances on both sides.” Yet it was this equivocal case, a squalid neighborhood feud between these lesser Hatfields and McCoys of Kalamazoo, that moved the state supreme court justice who wrote the court’s opinion to the most ringing denunciation of the spite fence anywhere in American law or literature. “What right has the defendant,” he inquired, “to shut out God’s free air and sun-light from the windows of his neighbor, not for any benefit or advantage to himself, or profit to his land, but simply to gratify his own wicked malice…?

 
 

“The wanton infliction of damage can never be a right,” he thundered in response, “and no man can pollute the atmosphere, or shut out the light of heaven, for no better reason than that the situation of his property is such that he is given the opportunity of so doing and wishes to gratify his spite and malice towards his neighbor.”

Drowned out were the voices of two dissenters. The decision might be impeccable as moral law, they pointed out, but it had no real basis in Anglo-American judicial precedent. They objected in vain. Burke v. Smith had no ancestry to speak of, but it has had plenty of descendants. The Michigan doctrine began spreading to other states. The spite fence absorbed a second splintering blow in 1889, when the Massachusetts courts upheld the constitutionality of the state’s new statute. Justice Oliver Wendell Holmes, Jr., found it within the legislature’s power to prohibit “this kind of aggressive annoyance of one neighbor by another” even if done by means traditionally permitted a landowner. It was an infringement on property rights, but acceptable because it was so insignificant.