OPINION OP THE COURT.
PARKER, J.— This was a hill for injunction by appellant to restrain appellee from erecting a fence along the line between their adjoining property. Appellant alleged that such fence overlapped on his land and was of no beneficial use to appellee, but was erected for malicious purposes and to obstruct appellant’s light and air and to be a menace to Ms building from fire and other causes.
Appellee answered and denied tbat he was erecting tbe fence for malicious purposes and averred that he was erecting the same for tbe purpose of securing the privacy of Ms own premises where he resided with his family from the observation of the occupants of tbe second st'orv of appellant’s building. Appellant replied tbat tbe fence at the height it bad reached at the time of service of the. writ of injunction prevented any occupant of his building from overlooking appellee’s yard and that appellee proposed to erect the same five feet higher which was unnecessary and was proposed to be done maliciously.
Appellant proved the erection of the fence by the placing of a frame of timbers on appellee’s land ancl by-nailing thereon planks commencing at a point fourteen feet from-the ground and on a level with the bottom of the second story windows of appellant’s building and extending upward for a distance of three feet and seven inches; that the fence at this point was sufficiently high to obstruct all view of appellee’s premises from appellant’s building, except a small portion of the roof of appellee’s house; that the prosecution of'the work to a still greater height was engaged in by appellee when served with the writ of injunction to the still greater obstruction of the light and air from appellant’s building; that said fence greatly increased the danger of fire to appellant’s building. Appellee offered no evidence and moved for dissolution of the injunction and dismissal of the bill which was done. The transcript does! not contain the testimony of the witnesses, but merely a statement of the substance of the same, agreed to by both parties.
It is not contended by appellant that appellee did not have the right to protect his own privacy by a structure of the kind erected. His claim is, however, that the fence was about to be erected to an unnecessary- height, for that purpose and he relies upon that fact alone to show malicious intent to injure his property.
It is to be noticed that no direct evidence of motive was submitted. The frame work of the fence was twenty-one feet high, and planks had been nailed to it beginning fourteen feet from the ground and extending upward three feet and seven inches, leaving three feet and five inches as the utmost additional height to which the fence could be extended, and against which appellant sought restraint. It is to the fact of the lack of necessity of this additional height of the fence and the additional injury to his property that appellant looks for proof of bad motive on the part of appellee. Appellee alleged in his answer that the second story of the building was to be used as a rooming house and the allegation was not denied in the reply. It may be that a structure of this kind might, under some circumstances, be so grossly unsuited or disproportionate to the uses claimed for it as to amount to proof of malice, but we cannot determine that this one was such a structure. Under the facts we fail to see how malice has been established by the evidence, and the court below, in finding the facts in favor of the defendant, appellee here, found there was none.
We understand the position of appellant to be that the erection of a structure of this kind may be restrained only when the same serves no useful purpose and is with intent to .maliciously injure the property, of another. We do not understand him to claim thát in the absence of either one of the foregoing characteristics a court of equity will interfere. This being so, it is clear that he can have no relief in this court and that the judgment below was correct.
This conclusion renders it unnecessary to consider whether, in this jurisdiction and in the absence of statute, there is any right, under anjf circumstances to restrain the erection on one’s own property of structures which cut off light and air from adjoining owners. See 12 Am. & Eng. Ency. of Law (2nd Ed.) 1058, where the eases are collected.
There being no error in the decree of the court below, it will be affirmed, and it is so ordered.
William J. Mills, C. J., Wm. H. Pope, A. J., Edward A. Mann, A. J., John R. McFie, A. J., concur. ■ Abbott, A. J-, having .tried the case below, did not participate in this decision.