This is an action of tort, under the St. of 1887, c. 348. The plaintiff has had a verdict for nominal damages, and the first question raised by the bill of exceptions is the constitutionality of the statute. Another question more or less connected with the former is whether the structure, in order to bring it within the act, must be erected or maintained for the purpose of annoyance as the dominant motive, or whether it is *372enough if that purpose existed, although subordinate to a bona fide use for legitimate purposes.
At common law, a man has a right to build a fence on his own land as high as he pleases, however much it may obstruct his neighbor’s light and air. And the limit up to which a man may impair his neighbor’s enjoyment of his estate by the mode of using his own is fixed by external standards only. Walker v. Cronin, 107 Mass. 555, 564. Chatfield v. Wilson, 28 Vt. 49. Phelps v. Nowlen, 72 N. Y. 39. Frazier v. Brown, 12 Ohio St. 294. Martin, B., in Rawstron v. Taylor, 11 Exch. 369, 378, 384. See Benjamin v. Wheeler, 8 Gray, 409, 413.
But it is plain that the right to use one’s property for the sole purpose of injuring others is not one of the immediate rights of ownership ; it is not a right for the sake of which property is recognized by the law, but is only a more or less necessary incident of rights which are established for very different ends. It has been thought by respectable authorities, that even at common law the extent of a man’s rights in cases like the present might depend upon the motive with which he acted. Greenleaf v. Francis, 18 Pick. 117, 121, 122. See Carson v. Western Railroad, 8 Gray, 423, 424; Roath v. Driscoll, 20 Conn. 533, 544; Wheatley v. Baugh, 25 Penn. St. 528; Swett v. Cutts, 50 N. H. 439, 447.
We do not so understand the common law, and we concede further, that to a large extent the power to use one’s property malevolently, in any way which would be lawful for other ends, is an incident of property which cannot be taken away even by legislation. It may be assumed, that, under our Constitution, the Legislature would not have power to prohibit putting up or maintaining stores or houses with malicious intent, and thus to make a large part of the property of the Commonwealth dependent upon what a jury might find to have been the past or to be the present motives of the owner.
But it does not follow that the rule is the same for a boundary fence unnecessarily built more than six feet high. It may be said that the difference is only one of degree: most differences are, when nicely analyzed. At any rate, difference of degree is one of the distinctions by which the right of the Legislature to exercise the police power is determined. Some small limita*373tians of previously existing rights incident to property may be imposed for the sake of preventing a manifest evil; larger ones could not be, except by the exercise of the right of eminent domain. Sawyer v. Davis, 136 Mass. 239, 243.
The statute is confined to fences and structures in the nature of fences, and to such fences only as unnecessarily exceed six feet in height. It is hard to imagine a more insignificant curtailment of the rights of property. Even the right to build a fence above six feet is not denied, when any convenience of the owner would be served by building higher. It is at least doubtful whether the act applies to fences not substantially adjoining the injured party’s land. The fences must be “ maliciously erected or maintained for the purpose of annoying” adjoining owners or occupiers. This language clearly expresses that there must be an actual malevolent motive, as distinguished from merely technical malice. The meaning is plainer than in the case of statutes concerning malicious mischief. Commonwealth v. Walden, 3 Cush. 558. See Commonwealth v. Goodwin, 122 Mass. 19, 35.
Finally, we are of opinion that it is not enough to satisfy the words of the act that malevolence was one of the motives, but that malevolence must be the dominant motive,—a motive without which the fence would not have been built or maintained. A.man cannot be punished for malevolently maintaining a fence for the purpose of annoying his neighbor merely because he feels pleasure at the thought he is giving annoyance, if that pleasure alone would not induce him to maintain it, or if he would maintain it for other reasons even if that pleasure should be denied him. If the height above six feet is really necessary for any reason, there is no liability, whatever the motives of the owner in erecting it. If he thinks it necessary, and acts on his opinion, he is not liable because he also acts malevolently.
We are of opinion that the statute thus construed is within the limits of the police power, and is constitutional, so far as it regulates the subsequent erection of fences. To that extent, it simply restrains a noxious use of the owner’s premises, and although the use is not directly injurious to the public at large, there is a public interest to restrain this kind of aggressive annoyance of one neighbor by another, and to mark a definite limit *374beyond which it is not lawful to go. See Commonwealth v. Alger, 7 Cush. 53, 86, 96; Watertown v. Mayo, 109 Mass. 315; Train v. Boston Disinfecting Co. 144 Mass. 523. See also Talbot v. Hudson, 16 Gray, 417, 423.
Whether the statute is constitutional with reference to fences already in existence, when the act was passed, is a more difficult question. We are compelled to construe the act as applying to all fences maintained after it goes into operation. If a fence which was built before the act, and is simply allowed to stand, may be found to be a nuisance, and abated at the expense of the owner, there is a taking of property without compensation which is more marked and significant than in the case of a simple prohibition to build. Commonwealth v. Alger, 7 Cush. 53, 103. But the case is not so hard as it seems. If the owner of the fence gave leave to the party complaining to take it down, it would show conclusively that the fence was no longer maintained by him for malevolent motives, and therefore would defeat an action for subsequent annoyance. On the whole, having regard to the smallness of the injury, the nature of the evil to be avoided, the quasi accidental character of the defendant’s right to put up a fence for malevolent purposes,- and also to the fact that police regulations may limit the use of property in ways which greatly diminish its value, we are of opinion that the act is constitutional to the full extent of its provisions. See Mugler v. Kansas, 123 U. S. 623; Kidd v. Pearson, 128 U. S. 1.
We are of opinion, however, that the exceptions must be sustained on the ground that the construction of the statute embraced in the second request for a ruling 'was substantially correct, as we have stated, whereas it appears that the request was refused, and the jury were instructed otherwise.
This fence was built before the act of 1887 was passed. The statute could not make the conduct of David Knox, in 1886, unlawful retrospectively. Help given by him in lawfully building the fence on his wife’s land did not of itself make him liable, whatever his motives, and did not tend to prove that he maintained the fence. There was no evidence that he did so, unless it is to be found in the ambiguous statement that he used it, which does not seem to have been the ground on which the case was allowed to go to the jury. The reply of Mrs. Knox in his *375absence was not evidence against him. As the exceptions must be sustained upon another ground, it is unnecessary to say more on this branch of the case. Exceptions sustained.