dissenting.
I agree that, if plaintiff placed any part of her fence over the lot line on defendants’ property, defendants had the right to remove it where it thus encroached, or by injunction restrain the trespass. To that part of the opinion of the majority which holds that, if an adjoining lot owner, prompted alone'by spite and a desire to annoy the adjacent lot owner, and for no useful purpose, should erect or should construct an unreasonably high fence, whether upon the lot line or his side of the line exclusively, equity could in a proper case protect the rights of the adjoining lot owner from what would be, in effect, a trespass. But I am fully persuaded that, so long as one keeps upon his own property, he has the right to the free use thereof, within reason, and to some exercise of his own judgment and preference as to the exercise of such use. If the use is lawful and within his rights, it is not for the courts to inquire as to his motive.
It does not strike me that the fence was so unsightly as to shock the sensibilities of any one, however refined they might be. The fence was 6 feet high, constructed of material planed and dressed upon both sides, and painted a dark, green color, which is not an objectionable color. The decree of the district court, and indeed of this court, orders no interference with plaintiff’s fence opposite the windows of defendants’ house. That ques*560tion is not before this court, for defendants have not appealed from that part of the decree. It therefore has no place in this case. The decree only prevents the maintenance of any fence from a point opposite the front of defendants’ porch to the front lot line, which is a distance of some 15 feet. Such a fence could not seriously interfere with the free circulation of the atmosphere, and the only possible interference with defendants would be to prevent them from observing everything existing or taking place in plaintiff’s front yard, and probably a view along the surface of the earth in the street, neither of which is of so valuable a right as to enable defendants to dictate to plaintiff as to how she shall use or enjoy her own home and property. It is apparent that every right of which defendants are deprived (that of inspecting plaintiff’s front yard, and looking along the street) is equally destroyed, so far as plaintiff is concerned, for she cannot oversee and inspect defendants’ front yard, nor observe what is doing along the street, but in the opposite direction. The inconvenience of defendants is no greater than that of plaintiff. By this decree all semblance of privacy in front of plaintiff’s house upon her own property is destroyed. If desired by plaintiff, I do not believe the court has any possible authority to enjoin the construction of the fence úpon her OAvn property, for her own benefit and convenience. To my mind the case is too trivial to warrant any such interference as is here proposed.