dissenting in part.
I respectfully dissent from that part of the majority’s opinion that reverses and remands appellants’ claim that the fence erected by appellees is a nuisance. I believe that appellants failed to meet their burden of proving that the fence was a nuisance.
The definition for spite fences found in a leading treatise states:
[A spite fence is] a structure of no beneficial use to the erecting owner or occupant of the premises, but erected or maintained by him solely for the purpose of annoying the owner or occupier of the adjoining property....
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When the fence serves a useful purpose, there is general agreement that the motive for erecting a fence or similar structure is immaterial, even where injury is [¶(¡caused to a neighbor by cutting off his light and air and obstructing his view.... 1
In the sole Arkansas case on a spite fence, the Arkansas Supreme Court noted that the common law rule is that an owner of property may erect on his property any type of structure desired, provided neither statute nor express agreement prohibits the structure.2 In that case, the court held that a fence, which was seven to eight feet in height, was not a nuisance where the fence was not built for the sole purpose of annoying the adjoining landowner, but to preserve and protect the defendant landowner’s property from trespassers and vandals. The court also noted the fence was not of an unusual height considering the purpose for which it was intended, despite the fact that the fence somewhat obscured the adjoining landowner’s view and was not as attractive as a pre-existing ornamental iron fence.3
In order to establish their claim, appellants relied on the testimony of realtor Jim Watkins that the wooden fence was not very attractive. Watkins said that the pickets were raised as if to make the fence provide more privacy. He said that the fact that the fence was unusually tall and extended all the way to the lake, blocking part of the view from appellants’ property, would hurt the value of both parties’ properties. Jeff Jenkins testified that the fence was unsightly with nails protruding and called it a safety hazard. As for the purpose of the fence, Watkins called it a “privacy” fence. There was no other testimony concerning the purpose of the fence.
111Even viewing the evidence in the light most favorable to appellants, as we must, I cannot say that a prima facie case of nuisance was met. Here, the majority cannot restrain itself from acting as the trier of fact. It goes into great detail to describe the fence, which it has never seen. All of this is irrelevant to deciding the case. The circuit judge found a beneficial purpose for the fence. Once the circuit court determines that the fence serves some beneficial purpose, other than to spite appellants, the inquiry is over.
I am authorized to state that Judge GRUBER joins in this dissent.
. 9 Powell on Real Property, § 62.05 (Wolf ed.2000).
. DeMers v. Graupner, 186 Ark. 214, 216, 53 S.W.2d 8, 9 (1932).
.186 Ark. at 217, 53 S.W.2d at 9.