The testimony of the plaintiff, on the trial of another case, which was proposed to be proved, to the effect that no gas tar had been put on the fence after he moved on the premises occupied by him, which is directly contrary to his testimony on the trial of this ease, regarded as an admission, was relevant evidence in this ease on the issue joined upon the first cause of action; and the defendant clearly had a right to prove that testimony as an admission, by any competent witness other than the plaintiff. I do not perceive why proof of the admission might not be made by the plaintiff himself, unless the plaintiff objected on the ground that he was privileged from answering. He was not bound to answer as to what he testified on a former trial, as he might thus aid a prosecution against him for perjury, (Bellinger v. The People, 8 Wend. 595. Mitchell v. Hinman, Id. 667.) But the right to object was personal to him as a witness. (The People v. Bodine, 1 Denio, 281. Ward v. The People, 6 Hill, 144.) Ho objection was made by the plaintiff personally, and the objection by his counsel in his behalf as a, party, was not put on the ground of privilege, but on the grounds that the defendant had made the plaintiff his witness, and cotild not impeach him; that the plaintiff should' be asked as to the fact, and not as to what he had before said; and also that the question was immaterial. The defendant was not precluded from examining the plaintiff or any other person, on the point, because his testimony, beyond the admission, and thus tending to prove the fact admitted, might impeach the plaintiff as a witness. He had no right to use it for the latter purpose; having called the plaintiff to testify, he thereby represented him as deserving of credit, and was concluded from denying it by introducing evidence for the purpose of impeaching him, showing either that his general character for truth was bad, or that he had made previous contradictory statements ; but he might, by any pertinent evidence, prove a fact to be otherwise than as testified to by the plaintiff. A party is always at liberty to show what the material facts of a case are, although in so doing he may contradict the testimony of some of his own witnesses, and the evidence may thus tend
*457indirectly to discredit them. ( Thompson v. Blanchard, 4 Coms. 303, 311.) And those facts may be shown by the admissions of the opposite party as well as by other evidence.
The principal questions in the case arise upon the instructions to the jury. It is alleged in the complaint as the first cause of action, that the defendant, contriving and wrongfully intending to annoy and injure the plaintiff in the use of his dwelling house, erected, or caused to be erected, on the defendant’s premises, immediately adjoining the plaintiff’s dwelling house, and before liis windows and doors, a board fence of from eight to ten feet high, and covered it with gas tar, and permitted it to remain so, by means of which, offensive and unwholesome smells arose and came into and upon the premises of the plaintiff, and annoyed him, and rendered his said dwelling house unhealthy and unfit for habitation. Evidence was given by the plaintiff in support of this cause of action. The jury were charged, as to this part of the case, that the defendant “ had not a right to build a fence in an unusual manner, materially to injure and annoy his neighbor, and deprive him of the use and enjoyment of his lot; for a man is bound so to use his own as to do no needless injury to his neighbor;” and further, 11 if you find the defendant put this fence there, or covered it with gas tar, as stated by the witness, for the purpose of injuring or annoying the plaintiff and rendering the use and enjoyment of his premises uncomfortable or unhealthy, and it had that effect, that would be an unreasonable use of his property, and he must be responsible for any damages or injury done thereby.” It is no part of the cause of action stated in the complaint, that the defendant erected or continued this fence, and thereby shut out the light from the dwelling of the plaintiff; the gist of the complaint, in respect to the fence, is covering the fence with gas tar, and the annoyance and discomfort from the offensive and unwholesome smells thereby occasioned; but evidence was given by the plaintiff, without objection, of the darkening of the house by means of this fence, and the jury were told in the charge, previous to the instructions above recited, that it formed part of the first cause of action. Ho specific objection, however, was taken to submitting the *458subject to the jury, as clearly was done in the charge, as not embraced within.the issue, and it is now too late to raise the objection for the first time. The question of the accuracy of the instructions in point of law, not their applicability to the complaint, is all that can be inquired into, and that is properly presented by the exception. The doctrine of the instructions, as applied to that part of the case which relates to the fence, and its effect upon the plaintiff is, that the defendant had not a right to build a fence on his own land for the purpose of excluding the light from the plaintiff’s dwelling, and that if he has done so, and it had that effect, he is responsible in damages for the injury. It is a general rule that the owner of land may use it according to his pleasure. The rule is however subject to this qualification, that he is not at liberty to use it in such a manner as to infringe the rights of o'thers. So use your own that you injure not another’s property, is a maxim of law supported by the soundest wisdom. But the injury intended is a legal injury; an invasion of some legal right, as erecting a building, or carrying on a business, on one’s own land, which so obstructs the enjoyment by another of his property as^o amount to a nuisance; or removing the soil, or placing something on the soil of another. These are violations of absolute legal rights and are strict legal injuries. But darkening another’s windows, or depriving him of a prospect, by building on one’s own land, where no right to the light unobstructed has been acquired by grant or prescription, digging by a person on his own soil so as to endanger the foundation of the building of the adjoining owner, and numerous similar acts by an owner of land, impairing the enjoyment and value of the land of another, short of what the law deems a nuisance, invade no legal right, and hence are not legal injuries. The maxim referred to does not extend to condemn such acts, as has been held in numerous cases. (Radcliff’s Ex’rs v. Mayor of Brooklyn, 4 Comst. 195, and cases there cited. Hay v. The Cohoes Company, 2 id. 159. Farrand v. Marshall, 21 Barb. 409. Parker v. Foote, 19 Wend. 318.) The instruction in question, if sustained, would carry the doctrine so far, and make the owner of land liable for such acts, if done with a bad *459motive. The question of liability would turn upon the motive. Although the owner might, for the protection of his land, and his own comfort and profit, or any worthy motive, erect a fence, or building, which would have the effect to shut out the light from his neighbor’s dwelling, he could not do so for the purpose of injury. Such a principle would be highly dangerous to the security of the enjoyment of real property. As to various modes of enjoyment, the lawfulness or unlawfulness of them would depend on the views of others as to the intentions of the owner. The fallacy of this doctrine consists in its overlooking a fatal defect in the right of action in such a case—the absence of any legal injury. * Bad motives in doing an act which violates no legal right oif another, cannot make that act a ground of action. But it is not necessary to examine the doctrine further on principle; it is fully settled by authority. In Mahan v. Brown, (13 Wend. 261,) which was an action for the obstruction of lights in the dwelling house of the plaintiff, the facts proved were, that the house was built on a lot adjoining a lot of the defendant, in which windows were placed for the admission-of light and air; that the defendant, under pretense of preventing his yard from being overlooked by the windows in the plaintiff’s house, but in fact from mere malice, and with the intent to exclude the light and air from the windows in question, had erected on his own lot a, fence forty feet high, opposite the recess or opening in the house of the plaintiff, in consequence whereof the light and air had been excluded from the windows and the plaintiff had sustained great damage, by her apartments, which had been occupied by boarders, being rendered untenantable. The plaintiff was nonsuited. On a motion to set aside the nonsuit, which was denied, Savage, Oh. J., delivered the opinion of the court, and in the course of the opinion says, “ The person who makes a window in his house which overlooks the privacy of his neighbor, does an act which strictly he has no right to do, although it is said no action lies for it. He is therefore encroaching, although not strictly and legally trespassing upon the rights of another. He enjoys an easement therefore in his neighbor’s property, •which in time may ripen into a right. But before *460sufficient time has elapsed to raise a presumption of a grant, he has no right, and can maintain no action for being deprived of that easement, let the motive of the deprivation be what it may; and the reason is, that in the eye of the law he is not injured. He is deprived of no right, but only prevented from acquiring a right, without consideration, in his neighbor’s property.” And again, “ The defendant has not so used his own property as to injure another. Ho one, legally speaking, is injured or damnified, unless some right is infringed. The refusal or discontinuance of a favor gives no cause of action. The plaintiff in this case has only been refused the use of that which docs not belong to her; and whether the motives of the defendant were good or bad, she had no legal cause of complaint.”
The charge in respect to the barn, fairly interpreted, I think, relates solely to the manner in which the barn was used, and the effect of its use, which is the cause of action stated in the third count of the complaint; and the instruction that if the defendant constructed and adapted the barn so that in its ordinary use it would be injurious and offensive to the plaintiff, and cast unwholesome odors into his house, the defendant was liable for the nuisance thus caused by his tenants to whom he had let the barn, was, in my opinion, correct. The case of Fish v. Dodge, (4 Denio, 311,) is directly in point. It is there held that one who demises his property for the purpose of having it used in such a way as must prove offensive to others, may himself be treated as the author of the mischief. (See also The King v. Pedly, 1 Adol. & Ellis, 822; 28 Eng. Com. Law R. 220.) But the further instruction that if the barn was built to be used in a certain way, and was let to a tenant who in fact used it in that way, and such use proved noxious or injurious to the plaintiff, the defendant is responsible for the injury, I think required some modification. If the use in that way would necessarily, under ordinary circumstances, be a nuisance, the proposition is correct; but if it proved a nuisance by reason of water in the cellar, and that was a special unusual circumstance, the defendant was not liable for the nuisance, unless he knew, or had reason to believe, when he let the barn, that the use of it in the *461ordinary mode would prove a nuisance. (Fish v. Dodge, above cited.)
[Monroe General Term, December 1, 1856.For the error in the charge relating to the fence, mainly, I am of opinion that the judgment should be reversed, and a new trial-granted, with costs to abide the event.
Judgment accordingly.
T. R. Strong, Welles and Smith, Justices.]