February/March 1996 | Volume 47, Issue 1
“GOOD FENCES MAKE GOOD NEIGHBORS,” wrote Robert Frost. But he may have been closer to the mark with another line: “Something there is that doesn’t love a wall.”
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What remains a widespread, though outdated, bit of folk legal doctrine was indeed the law of the land as late as the Civil War: That whatever I choose to build on my property is my own damn business and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.
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.