Smith v. Morse
Massachusetts Supreme Judicial Court
Two ACTIONS oe tort under the St. of 1887, c. 348, for maliciously erecting and maintaining a “ fence,” as alleged in the first count of the declaration in each case, and a “ fence or other structure in the nature of a fence,” as alleged in the second count of the declaration in the second case, each unnecessarily exceeding six feet in height, at or near the line of adjoining estates of the parties on High Street, in Newburyport.
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Two ACTIONS oe tort under the St. of 1887, c. 348, for maliciously erecting and maintaining a “ fence,” as alleged in the first count of the declaration in each case, and a “ fence or other structure in the nature of a fence,” as alleged in the second count of the declaration in the second case, each unnecessarily exceeding six feet in height, at or near the line of adjoining estates of the parties on High Street, in Newburyport. The injury in each case was alleged to be to the plaintiff and to the occupants of her premises in her and their comfort and enjoyment thereof, and to the…
1Opinion of the CourtHolmes, J.
These are both actions under St. of 1887, c. 348. We have decided that the statute is constitutional in Rideout v. Knox, ante, 368. The plaintiff had never occupied the premises, and there was no evidence of any injury to her or to her tenants, except what the jury may have gathered from a view. The judge ruled that as it appeared that the plaintiff’s estate was occupied solely by tenants, she was not entitled to recover, and directed verdicts for the defendant.
Notwithstanding the use of the word “ nuisance,” § 1 of the statute in no sense creates an easement in favor of the plaintiff’s *410land,…
2Cases cited2 opinions
- Tully v. Fitchburg RailroadMassachusetts Supreme Judicial Court · 1883
- Hanks v. Boston & Albany RailroadMassachusetts Supreme Judicial Court · 1888
3Cited by21 opinions
- Commonwealth v. DascalakisMassachusetts Supreme Judicial Court · 1923
- State ex rel. Klefisch v. Wisconsin Telephone Co.Wisconsin Supreme Court · 1923
- Karasek v. PeierWashington Supreme Court · 1900
- Norcross Bros. v. VoseMassachusetts Supreme Judicial Court · 1908
- Barger v. . BarringerSupreme Court of North Carolina · 1909
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