Chapter VIII: Interference with Advantageous Relations (7)

The complaint filed in the lower court, the substance of which has been stated, shows by necessary intendment that when the circular of the defendant company was issued it had in stock a limited quantity of the four brands of calico of the plaintiff’s manufacture which are therein described. The circular stated, in substance, that the defendant had such calicoes in stock, and the complaint did not deny that fact, but admitted it by averring that “the defendant corporation had but a small quantity of such goods to sell, and for that reason qualified its offer to sell by inserting in the circular after the name of the goods the words ‘as long as they last.’” Moreover, the owner of property, real or personal, has an undoubted right to sell it and to offer it for sale at whatever price he deems proper, although the effect of such offer may be to depreciate the market value of the commodity which he thus offers, and incidentally to occasion loss to third parties who have the same kind or species of property for sale. The right to offer property for sale, and to fix the price at which it may be bought, is incident to the ownership of property, and the loss which a third party sustains in consequence of the exercise of that right is _damnum absque injuria_. We are thus confronted with the inquiry whether the motive which influenced the defendant company to offer for sale such calicoes of the plaintiff’s manufacture as they had in stock at the price named in its circular, conceding such motive to have been as alleged in the complaint, changed the complexion of the act, and rendered the same unlawful, when, but for the motive of the actor, it would have been clearly lawful. It is common learning that a bad motive—such as an intent to hinder, delay, and defraud creditors, by virtue of St. 13 Eliz. c. 5, and possibly by the rules of the common law—will render a conveyance or transfer of property void which, but for the bad motive, would have been valid. So, also, one who sets the machinery of the law in motion without probable cause, and for the sole purpose of injuring the reputation of another, or subjecting him to loss and expense, is guilty of an unlawful act which would have been lawful but for the improper motive. And one who, by virtue of his situation, has a qualified privilege to make defamatory statements concerning another, may be deprived of the benefit of that privilege by proof that it was not exercised in good faith, but in pursuance of a malicious intent to injure the person concerning whom the defamatory statement or statements were made. Poll. Torts (Webb’s Ed.) pp. 331–335, and cases there cited. There is also some authority for saying that one who maliciously (that is, with intent to obtain some personal benefit at another’s loss or expense) induces another to break his contract with a third party thereby commits an actionable wrong if special damage is disclosed, although the act done would have been lawful if the wrongful motive had been absent. Lumley _v._ Gye, 2 El. & Bl. 216; Bowen _v._ Hall, 6 Q. B. Div. 333; Walker _v._ Cronin, 107 Mass. 555. And see Poll. Torts (Webb’s Ed.) pp. 668–673. Aside from cases of the latter kind, it is a general rule that the bad motive which inspires an act will not change its complexion, and render it unlawful, if otherwise the act was done in the exercise of an undoubted right. Or, as has sometimes been said, “when an act done is, apart from the feelings which prompted it, legal, the civil law ought to take no cognizance of its motive.” The question as to how far and under what circumstances a bad purpose will render an act actionable which, considered by itself, and without reference to the purpose which prompted it, is lawful, has been so much discussed since the decision in Allen _v._ Flood, [1898] 1 App. Cas. 1, that it would be profitless to indulge in further comment. It has been well observed that it would be dangerous to the peace of society to admit the doctrine that any lawful act can be transformed _prima facie_ into an actionable wrong by a simple allegation that the act was inspired by malice or ill will, or by an improper motive. It is wiser, therefore, to exclude any inquiry into the motives of men when their actions are lawful, except in those cases where it is well established that malice is an essential ingredient of the cause of action, or in those cases where, the act done being wrongful, proof of a bad motive will serve to exaggerate the damages.

The case at bar falls within neither of the exceptions to the general rule above stated,—that, if an act is done in the exercise of an undoubted right, and is lawful, the motive of the actor is immaterial. No one can dispute the right of the defendant company to offer for sale goods that it owned and were in its possession, whether the quantity was great or small, for such a price as it deemed proper. This was the outward visible act of which complaint is made, and, being lawful, the law will not hold it to be otherwise because of a secret purpose entertained by the defendant company to inflict loss on the plaintiff by compelling it to reduce the cost of a certain kind of its prints or calicoes.

Nor is the complaint aided in any respect by reference to the law of conspiracy, since the only object that the defendants had in view which the law will consider was the disposition or sale of certain goods which the defendant corporation had the right to sell; and the means employed to accomplish that end, namely, placing them on the market at a reduced cost, were also lawful.

In the brief filed in behalf of the plaintiff in error it is suggested finally that the complaint may be sustained on the ground that it states a good cause of action for maliciously causing certain persons to break or cancel their contracts with the plaintiff, but we think it quite obvious that the complaint was not framed with a view of stating a cause of action of that nature, and that it is insufficient for that purpose. It does not give the name of any person or corporation with whom the plaintiff had a contract for the sale of its prints which was subsequently broken in consequence of the wrongful acts of the defendant. Neither does it show that it had accepted any orders for goods which the jobber was not privileged to cancel at his pleasure. Nor does it allege any special damage incident to the breach of any particular contract. In view of all the allegations which the complaint contains it is manifest, we think, that it was framed with a view of recovering on the broad ground that the issuance of the circular was unlawful and actionable, provided the motive of the defendant company in issuing it was to occasion loss or inconvenience to the plaintiff.

We are of opinion that the complaint did not state a cause of action, as the trial court held, and the judgment below is therefore affirmed.

SANBORN, Circuit Judge (dissenting). I cannot concur in the opinion of the majority in this case because the petition alleges that the defendants by their advertisement of the goods manufactured by plaintiff, without any legitimate trade purpose, prevented jobbers from purchasing goods of the plaintiff, and caused those who had agreed to purchase from it to cancel their orders unless the plaintiff would make them a rebate, so that the plaintiff sustained damage in the sum of $19,000. In my opinion, the gravamen of this cause of action is not the malicious intent or purpose of the defendants, but it is their wrongful act of interfering with the plaintiff’s business, of preventing sales that it would have made, and of causing the cancellation of orders to, or contracts of purchase from, the plaintiff already made. This act, without any allegation or averment of intent or purpose, was itself wrongful, unless it was done for a justifiable purpose. The act of interfering with and injuring the trade or business of the plaintiff without justifiable cause entitled the plaintiff to damages. It is conceded that, if the defendants had advertised these prints for any legitimate trade purpose, for the purpose of selling them for gain for themselves, for the purpose of converting them into money because they preferred their advertised price to the goods, or for the purpose of competing in trade with the plaintiff, they would have had a justifiable cause for inflicting upon it the damages of which it complains, and these damages would then have been _damnum absque injuria_. But, if they had advertised them for any of these purposes, this case would have constituted an exception to the general rule of law. The general rule is that whenever one injures a man’s business, profession, or occupation he is liable for the damages he inflicts. The exception is that, where the injury is caused by competition in trade or the lawful exercise of a right which the inflictor has, then the injury is justifiable, and no damages can be recovered. But, where such an injury is inflicted, the presumption always is that the rule, and not the exception, applies, and, if the inflictor would justify, he must show that he falls within the exception. The question in this case, therefore, is not whether or not the motive or intent of the defendants will make acts unlawful which were otherwise lawful, but whether or not the intent and purpose of the defendants will justify an otherwise unlawful act, and excuse them from the payment of damages for which, under the general rule of law, they are liable to the plaintiff. It is whether or not the petition shows that they advertised the goods for legitimate trade purposes, so that their acts fell within the exception, which justifies the infliction of damages, and not under the general rule, which requires them to compensate the plaintiff for the injury they have caused. The opinion of the majority assumes that the defendants advertised the prints for a legitimate trade purpose, so that their acts fell within the exception to the general rule. It overlooks the legal presumption that injury to one’s business entitles him to compensatory damages, and the plain averment of the petition that the acts of the defendants were not done for any justifiable cause, but were committed for the sole purpose of inflicting upon the plaintiff the injury they caused.

[After quoting from the averments in the petition.]

Now, no one will dispute the rules of law that the plaintiff in this action had the right to conduct its business of manufacturing and selling prints without the injurious interference of strangers, and that the defendants were subject to the universal rule that they must so use their own property and rights as to inflict no unnecessary injury upon their neighbors. The averments of this petition are that they were not using any of their property or exercising any of their rights for any legitimate trade purpose, but that they were using them for the express purpose of inflicting injury upon the plaintiff, and that they succeeded in imposing the infliction. These allegations seem to me to bring this case under the general rule of law, and to clearly negative the claim that it falls within the exception. They seem to state a good cause of action.

[The learned Judge here cited, and quoted from, various authorities.]

The proposition is sustained by respectable authority; it is just, and I believe it is sound,—that an action will lie for depriving a man of custom (that is, of possible contracts), when the result is effected by persuasion as well as when it is accomplished by fraud or force, if the harm is inflicted without justifiable cause, such as competition in trade. Walker _v._ Cronin, 107 Mass. 555, 565; Morasse _v._ Brochu, 151 Mass. 567, 25 N. E. 74, 8 L. R. A. 524; Hartnett _v._ Association, 169 Mass. 229, 235, 47 N. E. 1002, 38 L. R. A. 194; Delz _v._ Winfree, 80 Tex. 400, 405, 16 S. W. 111; Doremus _v._ Hennessy, 62 Ill. App. 391, 403; Van Horn _v._ Van Horn, 52 N. J. Law, 284, 20 Atl. 485; Temperton _v._ Russell, 62 Law J. (Q. B. Div. 1893) 412, 419.

Under the legal principles to which reference has been made, and under the authorities which have been cited, the petition in this case states a good cause of action for interference with and injury to the business of the plaintiff by preventing it from obtaining custom it would otherwise have obtained, without any justifiable cause or excuse, and for this reason the demurrer should have been overruled, and the case sent to trial.

There is another reason why the judgment below should be reversed. It is that the petition sufficiently states a cause of action for maliciously interfering with contracts between jobbers in St. Louis and the plaintiff, and inducing the former to break their contracts to the injury of the latter.

* * * * *

For the reasons which have now been briefly stated, the judgment below should, in my opinion, be reversed, and the defendants should be required to answer the petition.[583]

TUTTLE _v._ BUCK
SUPREME COURT, MINNESOTA, FEBRUARY 19, 1909.
_Reported in 107 Minnesota Reports, 145._

Action in the District Court for Wright County to recover $10,000 damages. Defendant demurred to the complaint on the ground it did not state a cause of action. From an order, Buckham, J., overruling the demurrer, defendant appealed. Affirmed.

This appeal was from an order overruling a general demurrer to a complaint in which the plaintiff alleged:—

That for more than ten years last past he has been and still is a barber by trade, and engaged in business as such in the village of Howard Lake, Minnesota, where he resides, owning and operating a shop for the purpose of his said trade. That until the injury hereinafter complained of his said business was prosperous, and plaintiff was enabled thereby to comfortably maintain himself and family out of the income and profits thereof, and also to save a considerable sum per annum, to wit, about $800. That the defendant, during the period of about twelve months last past, has wrongfully, unlawfully, and maliciously endeavored to destroy plaintiff’s said business, and compel plaintiff to abandon the same. That to that end he has persistently and systematically sought, by false and malicious reports and accusations of and concerning the plaintiff, by personally soliciting and urging plaintiff’s patrons no longer to employ plaintiff, by threats of his personal displeasure, and by various other unlawful means and devices, to induce, and has thereby induced, many of said patrons to withhold from plaintiff the employment by them formerly given. That defendant is possessed of large means, and is engaged in the business of a banker in said village of Howard Lake, at Dassel, Minnesota, and at divers other places, and is nowise interested in the occupation of a barber; yet in the pursuance of the wicked, malicious, and unlawful purpose aforesaid, and for the sole and only purpose of injuring the trade of the plaintiff, and of accomplishing his purpose and threats of ruining the plaintiff’s said business and driving him out of said village, the defendant fitted up and furnished a barber shop in said village for conducting the trade of barbering. That failing to induce any barber to occupy said shop on his own account, though offered at nominal rental, said defendant, with the wrongful and malicious purpose aforesaid, and not otherwise, has during the time herein stated hired two barbers in succession for a stated salary, paid by him, to occupy said shop, and to serve so many of plaintiff’s patrons as said defendant has been or may be able by the means aforesaid to direct from plaintiff’s shop. That at the present time a barber so employed and paid by the defendant is occupying and nominally conducting the shop thus fitted and furnished by the defendant, without paying any rent therefor, and under an agreement with defendant whereby the income of said shop is required to be paid to defendant, and is so paid in partial return for his wages. That all of said things were and are done by defendant with the sole design of injuring the plaintiff, and of destroying his said business, and not for the purpose of serving any legitimate interest of his own. That by reason of the great wealth and prominence of the defendant, and the personal and financial influence consequent thereon, he has by the means aforesaid, and through other unlawful means and devices by him employed, materially injured the business of the plaintiff, has largely reduced the income and profits thereof, and intends and threatens to destroy the same altogether, to plaintiff’s damage in the sum of $10,000.[584]

ELLIOTT, J. (after stating the facts as above).

In has been said that the law deals only with externals, and that a lawful act cannot be made the foundation of an action because it was done with an evil motive. In Allen _v._ Flood, [1898] A. C. 1, 151, Lord Watson said that, except with regard to crimes, the law does not take into account motives as constituting an element of civil wrong. In Mayor _v._ Pickles, [1895] A. C. 587, Lord Halsbury stated that if the act was lawful, “however ill the motive might be, he had a right to do it.” In Raycroft _v._ Tayntor, 68 Vt. 219, 35 Atl. 53, 33 L. R. A. 225, 54 Am. St. 882, the court said that, “when one exercises a legal right only, the motive which actuates him is immaterial.” In Jenkins _v._ Fowler, 24 Pa. St. 308, Mr. Justice Black said that “malicious motives make a bad act worse, but they cannot make that wrong which, in its own essence, is lawful.” This language was quoted in Bohn Mnfg. Co. _v._ Hollis, 54 Minn. 223, 233, 55 N. W. 1119, 21 L. R. A. 337, 40 Am. St. 319, and in substance in Ertz _v._ Produce Exchange, 79 Minn. 140, 143, 81 N. W. 737, 48 L. R. A. 90, 79 Am. St. 433. See also 2 Cooley, Torts (3d Ed.) 1505; Auburn _v._ Douglass, 9 N. Y. 444.

Such generalizations are of little value in determining concrete cases. They may state the truth, but not the whole truth. Each word and phrase used therein may require definition and limitation. Thus, before we can apply Judge Black’s language to a particular case, we must determine what act is “in its own essence lawful.” What did Lord Halsbury mean by the words “lawful act”? What is meant by “exercising a legal right”? It is not at all correct to say that the motive with which an act is done is always immaterial, providing the act itself is not unlawful. Numerous illustrations of the contrary will be found in the civil as well as the criminal law.

We do not intend to enter upon an elaborate discussion of the subject, or become entangled in the subtleties connected with the words “malice” and “malicious.” We are not able to accept without limitations the doctrine above referred to, but at this time content ourselves with a brief reference to some general principles.

It must be remembered that the common law is the result of growth, and that its development has been determined by the social needs of the community which it governs. It is the resultant of conflicting social forces, and those forces which are for the time dominant leave their impress upon the law. It is of judicial origin, and seeks to establish doctrines and rules for the determination, protection, and enforcement of legal rights. Manifestly it must change as society changes and new rights are recognized. To be an efficient instrument, and not a mere abstraction, it must gradually adapt itself to changed conditions. Necessarily its form and substance have been greatly affected by prevalent economic theories.

For generations there has been a practical agreement upon the proposition that competition in trade and business is desirable, and this idea has found expression in the decisions of the courts as well as in statutes. But it has led to grievous and manifold wrongs to individuals, and many courts have manifested an earnest desire to protect the individual from the evils which result from unrestrained business competition. The problem has been to so adjust matters as to preserve the principle of competition and yet guard against its abuse to the unnecessary injury to the individual. So the principle that a man may use his own property according to his own needs and desires, while true in the abstract, is subject to many limitations in the concrete. Men cannot always, in civilized society, be allowed to use their own property as their interests or desires may dictate without reference to the fact that they have neighbors whose rights are as sacred as their own. The existence and well-being of society require that each and every person shall conduct himself consistently with the fact that he is a social and reasonable person. The purpose for which a man is using his own property may thus sometimes determine his rights; and applications of this idea are found in Stillwater Water Co. _v._ Farmer, 89 Minn. 58, 93 N. W. 907, 60 L. R. A. 875, 99 Am. St. 541, Id., 92 Minn. 230, 99 N. W. 882, and Barclay _v._ Abraham, 121 Iowa, 619, 96 N. W. 1080, 64 L. R. A. 255, 100 Am. St. 365.

Many of the restrictions which should be recognized and enforced result from a tacit recognition of principles which are not often stated in the decisions in express terms. Sir Frederick Pollock notes that not many years ago it was difficult to find any definite authority for stating as a general proposition of English law that it is wrong to do a wilful wrong to one’s neighbor without lawful justification or excuse. But neither is there any express authority for the general proposition that men must perform their contracts. Both principles, in this generality of form and conception, are modern, and there was a time when neither was true. After developing the idea that law begins, not with authentic general principles, but with the enumeration of particular remedies, the learned writer continues: “If there exists, then, a positive duty to avoid harm, much more must there exist the negative duty of not doing wilful harm, subject, as all general duties must be subject, to the necessary exceptions. The three main heads of duty with which the law of torts is concerned, namely, to abstain from wilful injury, to respect the property of others, and to use due diligence to avoid causing harm to others, are all alike of a comprehensive nature.” Pollock, Torts (8th Ed.), p. 21. He then quotes with approval the statement of Lord Bowen that “at common law there was a cause of action whenever one person did damage to another, wilfully and intentionally, without just cause or excuse.”

In Plant _v._ Woods, 176 Mass. 492, 57 N. E. 1011, 51 L. R. A. 339, 79 Am. St. 330, Mr. Justice Hammond said: “It is said also that, where one has the lawful right to do a thing, the motive by which he is actuated is immaterial. One form of this statement appears in the first head-note in Allen _v._ Flood, as reported in [1898] A. C. 1, as follows: ‘An act lawful in itself is not converted by a malicious or bad motive into an unlawful act so as to make the doer of the act liable to a civil action.’ If the meaning of this and similar expressions is that where a person has the lawful right to do a thing irrespective of his motive, his motive is immaterial, the proposition is a mere truism. If, however, the meaning is that where a person, if actuated by one kind of a motive, has a lawful right to do a thing, the act is lawful when done under any conceivable motive, or that an act lawful under one set of circumstances is therefore lawful under every conceivable set of circumstances, the proposition does not commend itself to us as either logically or legally accurate.”

Similar language was used by Mr. Justice Wells in Walker _v._ Cronin, 107 Mass. 555; by Lord Coleridge in Mogul Steamship Co. _v._ McGregor, 21 Q. B. Div. 544–553; by Lord Justice Bowen in the same case, 23 Q. B. Div. 593; by Mr. Justice Holmes in Aikens _v._ Wisconsin, 195 U. S. 194, 204, 25 Sup. Ct. 3, 49 L. Ed. 154; by Chief Justice McSherry, in Klingel _v._ Sharp, 104 Md. 233, 64 Atl. 1029, 7 L. R. A. (N. S.) 976, 118 Am. St. 399; and by Judge Sanborn in his dissenting opinion in Passaic Print Works _v._ Ely & Walker Dry Goods Co., 105 Fed. 163, 44 C. C. A. 426, 62 L. R. A. 673. Numerous cases will be found referred to in the note to this case in 62 L. R. A. 673, and in an article in 18 Harvard Law Rev. 411.

It is freely conceded that there are many decisions contrary to this view; but, when carried to the extent contended for by the appellant, we think they are unsafe, unsound, and illy adapted to modern conditions. To divert to one’s self the customers of a business rival by the offer of goods at lower prices is in general a legitimate mode of serving one’s own interest, and justifiable as fair competition. But when a man starts an opposition place of business, not for the sake of profit to himself, but regardless of loss to himself, and for the sole purpose of driving his competitor out of business, and with the intention of himself retiring upon the accomplishment of his malevolent purpose, he is guilty of a wanton wrong and an actionable tort. In such a case he would not be exercising his legal right, or doing an act which can be judged separately from the motive which actuated him. To call such conduct competition is a perversion of terms. It is simply the application of force without legal justification, which in its moral quality may be no better than highway robbery.

Nevertheless, in the opinion of the writer this complaint is insufficient. It is not claimed that it states a cause of action for slander. No question of conspiracy or combination is involved. Stripped of the adjectives and the statement that what was done was for the sole purpose of injuring the plaintiff, and not for the purpose of serving a legitimate purpose of the defendant, the complaint states facts which in themselves amount only to an ordinary every day business transaction. There is no allegation that the defendant was intentionally running the business at a financial loss to himself, or that after driving the plaintiff out of business the defendant closed up or intended to close up his shop. From all that appears from the complaint he may have opened the barber shop, energetically sought business from his acquaintances and the customers of the plaintiff, and as a result of his enterprise and command of capital obtained it, with the result that the plaintiff, from want of capital, acquaintance, or enterprise, was unable to stand the competition and was thus driven out of business. The facts thus alleged do not, in my opinion, in themselves, without reference to the way in which they are characterized by the pleader, tend to show a malicious and wanton wrong to the plaintiff.

A majority of the justices, however, are of the opinion that, on the principle declared in the foregoing opinion, the complaint states a cause of action, and the order is therefore affirmed.

Affirmed.

JAGGARD, J., dissents.[585]

WEAVER, J., IN DUNSHEE _v._ STANDARD OIL COMPANY
(1911) _152 Iowa Reports, 618._

As we understand appellants’ contention, it is that their conduct did
not transgress the bounds of legitimate competition, and that so long
as they kept within this limitation the question of the alleged malice
or motive inspiring their acts is wholly immaterial. Cases involving
the question thus suggested have frequently arisen, both in this
country and in England, and there is much in harmony in the
expressions of judicial opinion thereon. Many authorities may be found
holding without apparent qualification or exception, that the law
takes no account whatever of motives as constituting an element of
civil wrong. In other words, if a man do a thing which is otherwise
lawful, the fact that he does it maliciously and for the express
purpose of injuring his neighbor affords the latter no remedy at law.
Such is the net effect of Raycroft _v._ Tayntor, 68 Vt. 219, 35 Atl.
53, 33 L. R. A. 225, 54 Am. St. Rep. 882; Jenkins _v._ Fowler, 24 Pa.
308, and others of that class. If this be the correct view of the law,
a man may excavate the earth near the boundary of his own land for the
mere purpose of seeing the foundation of the house of his neighbor
slide into the pit thus prepared for it; he may dig through his own
soil to the subterranean sources of his neighbor’s spring or well and
divert the water into a ditch, where it will serve no purpose of use
or profit to himself or any one else; if a banker or merchant, he may
punish the blacksmith who refuses to patronize him by temporarily
establishing a shop on the next lot and hiring men to shoe horses
without money and without price, until he has driven the offending
smith to come to his terms or to go out of business; and if a farmer,
dependent upon a subterranean supply of water for the irrigation of
his soil or watering of his live stock, he may contrive to ruin his
competing neighbor by wasting the surplus not reasonably required for
his own use. The laws of competition in business are harsh enough at
best; but if the rule here suggested were to be carried to its logical
and seemingly unavoidable extreme there is no practical limit to the
wrongs which may be justified upon the theory that “it is business.”
Fortunately, we think, there has for many years been a distinct and
growing tendency of the courts to look beneath the letter of the law
and give some effect to its beneficent spirit, thereby preventing the
perversion of the rules intended for the protection of human rights
into engines of oppression and wrong. It is doubtless true that under
many circumstances an act is legally right and defensible without
regard to the motive which induces or characterizes it; but there is
abundance of authority for saying that this is by no means the
universal rule, and that an act which is legally right when done
without malice may become legally wrong when done maliciously,
wantonly, or without reasonable cause. In Panton _v._ Holland, 17
Johns. (N. Y.) 92, 8 Am. Dec. 369, it is stated as a general rule
that, “In the exercise of a lawful right, a party may become liable to
an action where it appears that the act was done maliciously.” See
also, Greenleaf _v._ Francis, 18 Pick. (Mass.) 117; Chesley _v._ King,
74 Me. 164, 43 Am. Rep. 569; Flaherty _v._ Moran, 81 Mich. 52, 45 N.
W. 381, 8 L. R. A. 183, 21 Am. St. Rep. 510; Sankey _v._ St. Marys, 8
Mont. 265, 21 Pac. 23; Harbison _v._ White, 46 Conn. 106; Stillwater
_v._ Farmer, 89 Minn. 58, 93 N. W. 907, 60 L. R. A. 875, 99 Am. St.
Rep. 541; Ohio Oil Company _v._ Indiana, 150 Ind. 698, 50 N. E. 1124;
Barclay _v._ Abraham, 121 Iowa, 619, 96 N. W. 1080, 64 L. R. A. 255,
100 Am. St. Rep. 365. The same principle has been frequently applied
in the decision of trade and labor controversies, though not without
other instances in which it has been repudiated. See People _v._
Petheram, 64 Mich. 252, 31 N. W. 188; Walker _v._ Cronin, 107 Mass.
555; Van Horn _v._ Van Horn, 52 N. J. Law, 284, 20 Atl. 485, 10 L. R.
A. 184; Hawarden _v._ Coal Co., 111 Wis. 545, 87 N. W. 472, 55 L. R.
A. 828; Graham _v._ Railroad Co., 47 La. Ann. 214, 16 South. 806, 27
L. R. A. 416, 49 Am. St. Rep. 366; Tuttle _v._ Buck, 107 Minn. 145,
119 N. W. 946, 22 L. R. A. (N. S.) 599, 131 Am. St. Rep. 446; Plant
_v._ Woods, 176 Mass. 492, 57 N. E. 1011, 51 L. R. A. 339, 79 Am. St.
Rep. 330; Barr _v._ Council, 53 N. J. Eq. 101, 30 Atl. 881; Toledo,
&c. Ry. Co. _v._ Penn. Co., (C. C.) 54 Fed. 730, 19 L. R. A. 387;
Stevens _v._ Kelly, 78 Me. 445, 6 Atl. 868, 57 Am. Rep. 813; Purington
_v._ Hinchcliffe, 219 Ill. 159, 76 N. E. 47, 2 L. R. A. (N. S.) 824,
109 Am. St. Rep. 322. In the Van Horn Case, _supra_, the court says:
“While a trader may engage in the sharpest competition with those in
like business by holding out extraordinary inducements, ... yet, when
he oversteps that line and commits an act with the malicious intent of
inflicting injury upon his rival’s business, his conduct is illegal,
and if damage results from it the injured party is entitled to
redress. Nor does it matter whether the wrong-doer effects his object
by persuasion or by false representation. The court looks through the
instrumentality or means used to the wrong perpetrated with the
malicious intent and bases the right of action on that.” Quoting this
language in Barr _v._ Council, _supra_, the same court adds: “The
right of action depends, then, not so much upon the nature of the act,
as upon the intent with which it is done, always assuming that injury
has attended the doing of it.” In Parkinson _v._ Council, 154 Cal.
581, 98 Pac. 1027, 21 L. R. A. (N. S.) 550, the court, while reaching
the opposite conclusion generally, concedes it to be the law that:
“Any injury to a lawful business, whether the result of conspiracy or
not, is _prima facie_ actionable, but may be defended on the ground
that it was merely a lawful effort of the defendants to promote their
own welfare. To defeat this plea of justification, the plaintiff may
offer evidence that the acts of the defendants were inspired by
express malice, and were done for the purpose of injuring the
plaintiff, and not to benefit themselves.”

Dealing with the perplexities arising in the effort to sustain, on the
one hand, the widest practicable liberty of men to engage in any and
every line of business, and, on the other, to protect the business of
each from wrongful encroachment or interference by others, the New
Hampshire court after reference to many of the decided cases, has
lately said: “The more recent authorities reason that, as the right to
deal or not to deal with others is inherent in the idea of Anglo-Saxon
liberty, _prima facie_ a man may demand an open market, and, since
this is so, one who interferes with this open market must justify his
acts, or respond in damages. Thus far these authorities are uniform,
but when they proceed to the determination of what amounts to a
justification they differ widely. The cause is not far to seek. The
rule they apply is that of reasonable conduct; yet they decide each
case as though it involved only a question of law. In reality, the
issue is largely one of fact, and the result is what would be
expected. Judges are men, and their decisions upon complex facts must
vary as those of juries might on the same facts. Calling one
determination an opinion and the other a verdict does not alter human
nature, nor make that uniform and certain which from its nature must
remain variable and uncertain. While these cases go too far in what
they decide as questions of law, yet the test they constantly declare
they are applying is the true one. The standard is reasonable conduct
under all the circumstances of the case.” Huskie _v._ Griffin, 75 N.
H. 345, 74 Atl. 595, 27 L. R. A. (N. S.) 966. See, also, Doremus _v._
Hennesy, 176 Ill. 608, 52 N. E. 924, 54 N. E. 524, 43 L. R. A. 797,
802, 68 Am. St. Rep. 203; Horan _v._ Burns, 72 N. H. 93, 54 Atl. 945,
62 L. R. A. 602, 101 Am. St. Rep. 670; Ertz _v._ Produce Exchange, 79
Minn. 140, 81 N. W. 737, 48 L. R. A. 90, 79 Am. St. Rep. 433. As
suggested in the foregoing quotation, no definition or standard of
reasonable cause can be stated which will insure absolute uniformity
or even consistency in the decision of such cases, because the issue
presented is in its essence one of fact, and the same facts and
circumstances will not always appeal with like effect to the minds of
all jurors or of all judges. It is for this reason that, save in those
exceptional cases where the case of the plaintiff or the defendant is
so clear and undisputable that all fair-minded persons are forced to
the same conclusion, controversies of this nature, in a trial at law,
are for the jury, and not for the court.

Coming to the case in hand, we may concede to the appellants the
undoubted right to establish a retail oil business in Des Moines, to
employ agents and drivers, and send them out over the same routes and
make sales to the same people with whom the Crystal Oil Company was
dealing; but in so doing it was bound to conduct such business with
reasonable regard and consideration for the equal right of the Crystal
Company to continue supplying oil to such of its customers as desired
to remain with it. If, however, there was no real purpose or desire to
establish a competing business, but, under the guise or pretence of
competition, to accomplish a malicious purpose to ruin the Crystal
Company or drive it out of business, intending themselves to retire
therefrom when their end had been secured, then they can claim no
immunity under the rules of law which recognize and protect
competition between dealers in the same line of business seeking in
good faith the patronage of the same people. And if, under such
pretence of competition, defendants maliciously interfered with the
business of the Crystal Oil Company, in the manner charged, and injury
to the latter was thereby inflicted, a right of action exists for the
recovery of damages. It may be conceded that authorities are not
wanting to sustain the position that, even though the Standard Oil
Company had no intention of becoming a retail dealer in oil in Des
Moines, but entered the business of selling oil in this manner
temporarily, for the sole purpose of driving the Crystal Company out,
it is a matter into which the courts will not inquire; but we think
such precedents are out of harmony with fundamental principles of
justice, which, as we have said, underlie the law, as well as out of
harmony with the later and better-considered cases. True the Standard
Company, as a wholesale dealer, would violate no law in offering its
product for sale at retail at half price in the territory supplied by
the Crystal Company, but such fact, if proven, would have a distinct
bearing upon the reasonableness of its methods employed in diverting
trade from said company, as well as upon the charge that in
interfering between the Crystal Company and its customers the Standard
Company was actuated by malice or spirit of wanton assault upon the
business of another, who had given it offence.[586]

KUZNIAK _v._ KOZMINSKI
SUPREME COURT, MICHIGAN, DECEMBER 17, 1895.
_Reported in 107 Michigan Reports, 444._

Bill by John Kuzniak against Jacob Kozminski and Frances Kozminski to abate an alleged nuisance. From a decree for complainant, defendants appeal. Reversed.

LONG, J. The parties to this cause own adjoining lots in the city of Grand Rapids. Defendants’ lot is on the southeasterly corner of Eleventh and Muskegon streets, and upon which is a large tenement house facing both streets. The complainant owns the lot immediately south and adjoining the defendants’, and upon which he has a dwelling house facing Muskegon street, and also a tenement house about 60 feet back from Muskegon street, and within 22 inches of the north line, being the line of defendants’ lot. At the time this tenement house was erected, defendants had upon their lot what was called a “chicken shed”; and, after complainant’s tenement house was erected, defendants moved this chicken shed upon a part of their lot directly opposite complainant’s tenement house, and within 24 inches of the lot line, and converted it into a coal and wood house for the use of their tenants, who occupied the dwelling on said lot. This bill was filed by complainant for the purpose of having this coal and wood house of defendants declared a nuisance, and to compel them to remove the same. The claim made by the bill is that the defendants removed the building to that place through spite and from a malicious motive, and not because it was needed for any useful purpose. Defendants answered the bill, denying that they were actuated by malice in putting the building there, and averred that it was so placed for the use of their tenants for wood and coal. The testimony was taken in open court, and the court found that the building was a nuisance, and a decree was entered directing the defendants to remove the building within 60 days from the date of the decree, and that, in default of such removal, the sheriff of the county remove the same, at the cost and expense of defendants. The complainant was awarded the costs of the suit. Defendants appeal.

It was held in Flaherty _v._ Moran, 81 Mich. 52, that a fence erected maliciously, and with no other purpose than to shut out the light and air from a neighbor’s window, was a nuisance, and the decree of the court below ordering its removal was affirmed; but that decision was placed on the ground that the fence served no useful purpose, and was erected solely from a malicious motive. In the present case the building erected by the defendants was for a useful purpose; and, while there may have been some malice displayed in putting it so near the complainant’s house as to shut off some of the light, that would not be a sufficient reason upon which to found a right in complainant to have the building removed. Defendants had a right to erect a building upon their own premises, and the decisions have been quite uniform to the effect that the motives of a party in doing a legal act cannot form the basis upon which to found a remedy. In Allen _v._ Kinyon, 41 Mich. 282, it was held that the motive is of no consequence when the party does not violate the rights of another. In Hawkins _v._ Sanders, 45 Mich. 491, it was held that there was no right of prospect which would prevent the erection of an awning on a neighboring lot. The case does not fall within the rule of Flaherty _v._ Moran, _supra_, and the court below was in error in directing the removal of the building. That decree must be reversed, and a decree entered here dismissing complainant’s bill, with costs of both courts to the defendants.

The other Justices concurred.[587]

HORAN _v._ BYRNES
SUPREME COURT, NEW HAMPSHIRE, APRIL 7, 1903.
_Reported in 72 New Hampshire Reports, 93._

Case, under sections 28 and 29, chapter 143, Public Statutes, for maintaining a structure in the nature of a fence, in violation of the statute.

Upon the trial, defendant moved for a nonsuit, on the ground that the statute is unconstitutional. The motion was denied, and defendant excepted.

Verdict for the plaintiff.[588]

PARSONS, C. J. “Any fence or other structure in the nature of a fence, unnecessarily exceeding five feet in height, erected or maintained for the purpose of annoying the owners or occupants of adjoining property, shall be deemed a private nuisance.

“Any owner or occupant, injured either in his comfort or the enjoyment of his estate by such nuisance, may have an action of tort for the damage sustained thereby.

“If the plaintiff recovers judgment in the action, the defendant shall cause the removal of the nuisance within thirty days from the date of the judgment, and for each day he shall permit the nuisance to remain after the expiration of said thirty days he shall incur a penalty of ten dollars for the use of the party injured.” P. S. c. 143, ss. 28, 29, 30.

The act forbids the use by one landowner of his land for the unnecessary erection of a fence exceeding five feet in height, when the purpose of such unnecessary height is the annoyance of the adjoining owner or occupant, if such unnecessary height injures the adjoining owner in his comfort or the enjoyment of his estate. The claim of the defendant in support of his motion for a nonsuit, that the statute is unconstitutional, raises the question whether the statutory prohibition is an interference with the defendant’s “natural, essential, and inherent” right of “acquiring, possessing, and protecting property,” or deprives him of that protection in its enjoyment, which is the right of “every member of the community.” Bill of Rights, arts. 2, 12.

* * * * *

The constitutional objection made to the present statute raises the question, if it appears that the statute is an interference with the defendant’s property right, whether the interference is or not one which the legislature might properly make as a regulation of the use of property. The constitutionality of similar statutes has been upheld upon the latter ground, as being merely a small limitation of existing rights incident to property, which under the police power may be imposed for the sake of preventing a manifest evil. “It is hard,” it has been said, “to imagine a more insignificant curtailment of the rights of property.” Rideout _v._ Knox, 148 Mass. 368, 372, 373; Karasek _v._ Peier, 22 Wash. 419; Western &c. Co. _v._ Knickerbocker, 103 Cal. 111. Similar statutes in Maine, Vermont, and Connecticut have been before the courts, but it has not been suggested that the power of the legislature to adopt them has been attacked in those states. Lord _v._ Langdon, 91 Me. 221; Harbison _v._ White, 46 Conn. 106; Gallagher _v._ Dodge, 48 Conn. 387, 40 L. R. A. 181–183, note.

The present statute was passed in 1887. Laws 1887, c. 91. In Hunt _v._ Coggin, 66 N. H. 140, the verdict was for the defendant; and in Horan _v._ Byrnes, 70 N. H. 531, the defendant waived any objection to the statute upon this ground. In Lovell _v._ Noyes, 69 N. H. 263, the question was whether a building was within the terms of the statute. The constitutional question is now presented for the first time.

It is objected in answer to the argument that statutes like the present are within the constitutional exercise of the police power, involving for the general good some slight limitation of existing property rights, that if one incident of the property right in real estate is the right to use it maliciously for the sole purpose of injuring another, it is as much an invasion of the right to take it from a small portion as from the whole of one’s property; and that the matter in question concerns private individuals and not the public in general, and hence does not come within the police power. State _v._ White, 64 N. H. 48, 50. It may be thought these objections are successfully answered in the cases cited, or that, if not there answered, a satisfactory answer can be found. But a discussion of these objections does not reach the fundamental question in the case.

“The statute was designed to prevent an act the sole effect of which would be to annoy or injure another.” Lovell _v._ Noyes, 69 N. H. 263. The primary question, therefore, is whether one’s right to use property solely to injure another is a part of his property right in real estate, which is so protected by the constitution that the prohibition of such use is not within the general power of legislation “for the benefit and welfare of this state and for the governing and ordering thereof.” Const. art. 5. Upon the question whether a fence on or near the division line between adjoining landowners, maliciously built to an unreasonable height for the sole purpose of annoying and injuring the adjoining owner or occupant, is a nuisance which can in the absence of statutory authority be abated by an injunction, the courts are in conflict. Letts _v._ Kessler, 54 Ohio St. 73, answers the question in the negative, while an opposite conclusion is reached in Michigan. Burke _v._ Smith, 69 Mich. 380; Flaherty _v._ Moran, 81 Mich. 52; Kirkwood _v._ Finegan, 95 Mich. 543. In Rideout _v._ Knox, 148 Mass. 368, and Karasek _v._ Peier, 22 Wash. 419, cases in which the power of the legislature to enact a statute similar to that under consideration is attacked and upheld, it is conceded “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.” Rideout _v._ Knox, _supra_, 372.

The conclusion that a landowner’s property right in real estate includes the right to use it solely for the injury and annoyance of his neighbor, without intending to subserve any useful purpose of his own, is “based upon a narrow view of the effect of the land titles,” and is reached “by the strict enforcement of a technical rule of ownership briefly expressed in an ancient maxim,” _cujus est solum, ejus est usque ad coelum_. The courts of this state have had in some respects, at least, a different understanding of the elements of land-ownership. As to the use of land in the control of surface water, the enjoyment of water percolating beneath the surface, and the use generally that may be rightfully made of real estate by the owner or occupant, the test has been considered to be not merely whether the act was an exercise of dominion on the land regardless of the injury to other land, but the reasonableness of the use under all the circumstances, including the necessity and advantage to one and the unavoidable injury to the other. Franklin _v._ Durgee, 71 N. H. 186; Ladd _v._ Brick Co., 68 N. H. 185; Swett _v._ Cutts, 50 N. H. 439; Bassett _v._ Company, 43 N. H. 569, 577. It has been said that the rule of absolute dominion is easier of application. Chase _v._ Silverstone, 62 Me. 175, 183. This view, however, does not seem to be upheld by the difficulties met in its application in reference to surface waters. See Franklin _v._ Durgee, 71 N. H. 186, 189. But however that may be, difficulty in administration is not a sufficient reason for the denial of justice. Cases like Chatfield _v._ Wilson, 28 Vt. 49, and Phelps _v._ Nowlen, 72 N. Y. 39, in which the principle of the maxim relied upon is applied to waters in the soil, are not authority here, where a contrary view is entertained. Franklin _v._ Durgee and Bassett _v._ Company, _supra_.

Aside from the authorities in cases in which the control of waters was in question, the leading case appears to be Mahan _v._ Brown, 13 Wend. 261. Here, although the plaintiff alleged that the fence complained of was erected solely to injure her, the decision is upon the ground that by the erection of the fence the plaintiff is deprived of no right, but is merely prevented from acquiring a right. If by enjoyment of light and air across his neighbor’s land for the prescriptive period a landowner could acquire a right to such enjoyment, the building of a fence as an assertion of a contrary right and to prevent the acquiring of such easement would be a building for a necessary and useful purpose, and not for the sole purpose of annoying another. The case standing upon a view of the effect of non-user of a right to build, now generally abandoned in this country (Wash. Ease. 490, 497, 498), is not of value in the present discussion. The argument generally is, that the motive with which one does an act otherwise lawful is immaterial; and hence, as it must be conceded that a landowner has the right to build on his land as he conceives may best subserve his interests, the act lawful for a useful purpose is not made unlawful and a nuisance merely by the intent accompanying it.