Right to Use

Generally, a property owner has the right to use their property as they please. However, there are a few exceptions such as the nuisance doctrine and spite fences. The following cases address some of these exceptions.

Sundowner, Inc. v. King

50 P.2d 785 (Idaho 1973).

Example of a spite fence. King had built the fence, was a defendant, lost in the trial court, and appealed.


Did the trial court error in requiring the shrinking of the fence due to it being a spite fence?


“One may not erect a structure for the sole purpose of annoying his neighbor.”


Although the evidence is somewhat conflicting, it is substantial enough to maintain the ruling. Affirmed.


The King’s had purchased a motel from Robert Bushnell who started the Desert Inn next door. This led to disputes between the parties. King had a fence built directly between the buildings that spanned the length of the buildings and was 18 feet high.

King claimed it was for advertising purposes, but the testimony at trial said that there was no benefit for this “sign” to be up.


Therefore, the courts deemed that the jury evidence was sufficient to say this was a spite fence. The two conditions for a spite fence usually require the intent to be spite and that the structure is useless for anything other than spite. It appears those two conditions were met here.


As mentioned, this case is a good example of spite fences being an exception to the right of use.

Additional Notes

Traditionally, the rule is that the property owner has the right to use the property in whatever way they desire, as long as there is no harm to others from that use.

Spite is an evidence of intent. The court said that the building was designed only for the purpose of malice, that the use of advertising was insufficient (not worth the cost) and could be used as nothing else. However, the intent is significant, if there was no malice, then this would have been fine. This is because we want to give owners the ability to use their decisions in a way that expands the use of the property (even if it is a poor choice). However, if there is malice, then a poor decision is even weaker.

So, we learn from this case that intent matters as does the use of the structure. We also need to consider the harm caused to the others, if the harm is only annoyance, then it may not be enough if there is a use to the fence.

Prah v. Maretti

321 N.W.2d 182 (Wisc. 1982).

Prah lost in trial court to summary judgment and appealed.


Could the blockage of sunlight by a neighbor be deemed a nuisance?


The uses of the neighbor must not unreasonably impair the uses of the other neighbor. If it interferes, then it is a private nusiance.


The blocking of light, in this day and age, can be deemed a private nuisance. Reversed and Remanded for further trial.


Prah had solar panels on his roof to gather energy for his home. Soon after, Maretti began constructing a home on the neighboring lot. Unfortunately for Prah, the development of a home on that land would block the sunlight causing the solar panels to not function properly.

So, Prah sued Maretti asking for injunctive relief (build somewhere else) and damages. Both parties were in essence harming the other.


Back in the olden times, sunlight was seen mostly as a use for enjoyment, rather than having a purpose. In those times, there was no rule for nuisance for blocking the light. However, when the home now has a use of gathering energy from the light for function, it makes sense to restrict the neighbors from blocking that light.

So, it is possible for this doctrine to apply to blocking light. In this case, it should be remanded and tried to determine if the blockage was unreasonable.


A private nuisance is often defined as the “intentional, nontrespassory, unreasonable and substantial interference with the use and enjoyment of the plaintiff’s land.” It is usually deemed unreasonable if the use causes more harm than good.

Additional Notes

This case, again, is about the use and if it should be limited.

Here, we are examining the competing interests of a view, which will increase the value of the property, or use of the sunlight.

Under the common law, the sunlight could be blocked for three reasons

  • Property owners could do what they want if they did not cause physical damage to the neighbor
  • Sunlight was only for enjoyment
  • There was an interest in not impeding the development of land.

This court changed the traditional common law by addressing these points:

  • There are increasing regulations on the use of land that benefits society.
  • Sunlight is now being used as a source of energy, not just for enjoyment.
  • Third, society no longer desires the unimpeded development of land.

The dissent disagrees with this analysis saying that there could be a market solution to this disagreement. Additionally,  the homeowner could have taken precautions that would have protected his investment.

One thing to note is that the courts are opposed to determining that nuisance applies to an “aesthetic injury.”

Right to Destroy

The final right in our bundle is the right to destroy. For the most part this is straightforward. Most property naturally decays and sometimes it is meant for destruction (like eating an apple). However, things become more tricky when the property has significant value (other than monetary value, that is). So, what restrictions can be put on the right to destroy? Obviously insane people are limited, but what about other cases?

Eyerman v. Mercantile Trust Co.

524 S.W.2d 210 (1975).

The plaintiffs lost in the trial court and appealed.


Whether the trial court was wrong to refuse the preservation of the home.


Heavy public policy arguments can influence the decision to preserve property against the wishes of the owner.




The home in question is #4 Kingsbury Place in St. Louis. This home and area was a prime view of the wealth and pride of the people of the area. However, the owner had put it in her will to have the home demolished and the land sold upon her death. Once she died, the people gathered together to prevent the demolition.


The court considers several public policy considerations.

  • First, the wealth of the estate in preservation v. destruction.
  • Second, the wealth of the community
  • Third, the fact that the home was considered a landmark.

The dissent disagrees saying that had she been alive, she would have been able to do the demolition herself. This should not change in her death. As for the public policy matters, a home on the estate would eventually be built, and the location simply became a landmark in an effort to preserve the place. Even though it would be upsetting to see the home go, she would still maintain her right to destroy the property.

Additional Notes

Why do people lose the property right to destroy once they die, when that right remains during life? After death, the right is restricted unless there is a good use or reason for the destruction. The majority argues that nobody benefits from the destruction of the home. This includes the beneficiaries, the plaintiffs (neighbors), and the public.

What would be some good reasons that justify destruction?

  • If there was a dangerous condition in the home.
  • Converting the home for some other use.


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Categories: 1L Spring, Property

Will Laursen

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