Today fence size and location are restricted throughout the country by a wide array of state statutes and precedents, of local ordinances and subdivision building rules. Law, of course, is one thing, enforcement another. Fences erected partly out of malice that nonetheless serve some useful purpose are often exempted. The fence builder brought to court can always find some such purpose to allege: obtaining privacy, if nothing else. The defendant in the 1889 Massachusetts test case claimed to be a lover of vines and to have built the unsightly eleven-foot board fence in question as a trellis. These tactics have sometimes worked, and worked best when malice has been genuinely diluted by some socially redeeming value. But if tamed and hybrid forms can survive, it is not difficult for judge, jury, and building inspector to know a pure spite fence when they see one, and in most places they have all the authority they need to abate it. Spite fences are still built, but few can stand for long. They spring up and are cut down.

It would be wrong, though, to give the law all the credit for their near extirpation. Like many threatened species, they have been the victim as much of incidental habitat loss as of deliberate hunting. The American city of a hundred years ago offered an environment in which they could flourish. The typical residential lot had a narrow street frontage hardly wider than the house itself, which sat close to the property lines on both sides. And even in the absence of malice a wooden fence typically screened the backyard and sometimes the house from its neighbors. The best-known fence in American fiction, the one whitewashed by Tom Sawyer’s friends, was “thirty yards of board fence, nine feet high”- no spite fence though it approached the dimensions of one, just the ordinary house-lot enclosure of that time. The difference between a spite and a common fence in this setting being a difference of degree and not kind, the former could easily camouflage itself from the law. Yet it was a setting in which that small difference in height and location made a great deal of difference in impact. A room with its windows walled up became unbearably hot and stuffy in the summer and unpleasantly dark in all seasons. Spite fences in some places were effective tools of greed as well as of malice. Lot owners levied “rental for light and air” on their neighbors and fenced off these utilities when the payment fell behind.

The threat today would carry less weight; windows are not as essential for ventilation and light as they once were. It would also be harder to carry out. Because lots are wider and houses spaced farther apart than they were in the late nineteenth century, much less often is a dwelling as close to the boundary of adjoining lots as it needs to be for a spite fence to be effective. Erecting one large enough to annoy a house farther than a few feet away is a daunting task; disguising it as anything but an act of malice is a nearly hopeless one. The spite fence is vanishing, and it is just as well. A striking landmark it may be, but it strikes its neighbor too brutally to be tolerated. Not everything in the landscape, however picturesque, deserves preservation; not all losses of variety are to be regretted.