The law, to borrow a quote from Winston Churchill, “is a riddle, wrapped in a mystery, inside an enigma; but perhaps there is a key.” That “key” is often found in the Wisconsin Statutes which is affectionally referred to as the book of surprises. Hence, when faced with the proverbial question of whether “fences make good neighbors” it made sense to scour the Wisconsin Statutes for an answer. Behold! Such a timely question has an answer and it is: not necessarily. Wisconsin law prohibits the construction of spite fences. In the words of the legislature:
“Any fence, hedge or other structure in the nature of a fence unnecessarily exceeding 6 feet in height, maliciously erected or maintained for the purpose of annoying the owners or occupants of adjoining property, shall be deemed a private nuisance. However, nothing herein contained shall limit the right of a municipality to forbid the erection of a fence less than 6 feet in height.”
Spite fences were not always held in such low esteem in this great State. Circa 1900, from the quaint village of Glenbeulah, Wisconsin comes the case of Metzger v. Hochrein. The Court described Metzger’s property as “surrounded by made lawns and yards, making an attractive and valuable home.” Standing accused of erecting a spite fence, Hochrein set “rough” tamarack posts, from eight to sixteen feet high along the border between the properties. Making things worse, the Court described that between these posts was a “tight board fence of rough, old, unsightly, and partly decayed lumber from an old ice house.” Ignoring the adage to love thy neighbor, the Wisconsin Supreme Court dismissed the case. In language that seems whimsical today, the Court endorsed the right to annoy one’s neighbor:
“This is one of the many cases that may arise where the doctrine of personal liberty and personal dominion of one over his own property enables him to do things to the annoyance of others, not causing actual, material physical discomfort to them, for which there is no punishment, except loss of that respect which every right-thinking man desires from his neighbors, and the possession of which is a source of daily enjoyment. If one is so constituted as not to be susceptible to those feelings which a reasonably well-balanced man is supposed to possess, and is so constituted as to obtain more pleasure out of needlessly annoying others than by securing and retaining their respect as a manly member of society, his sovereign right in his own property, to use it as he may so far as that use does not physically extend outside his boundaries to the detriment of others, may be so exercised as to violate the moral obligations which every member of society owes to his neighbors, without any penalty being visited upon him for his misconduct, of which he can be made conscious.”
However, the unbridled ability to irritate neighbors did not last long. In 1903, an early version of the spite fence statute was passed in reaction to the Supreme Court’s decision in Metzger v. Hochrein. Now, some modern examples help us understand the mash-up of words contained in the spite fence statute. For an example from Utah, would a “Redneck Stonehenge” consisting of three old cars upright in the ground, erected after a neighborly dispute constitute a spite fence? The answer in a word – yes! Closer to home, a Wisconsin appeals court in the case of Apple Hills Farms v. Price found that an “exposed thirty-two feet long, twelve feet high bare concrete wall” near a property was a spite fence. The facts of the Apple Hills Farms’ case provide a textbook definition of spite. Price, the erector of the wall, told the contractor building the wall that he wanted the wall “ugly” to devalue his neighbor’s property. Surely, it did not help his case that he sprayed grass killer on his neighbor’s lawn to spell “A-hole.” Price’s spite bit him back in the end when the court ordered that he pay his neighbor $150,000.
Upon reflection, the law may not be able to answer the question of whether fences make good neighbors, but it shows that at times, fences certainly make spiteful neighbors. To close, Robert Frost’s poem “Mending Wall” fittingly contains the following contemplative prose: “Before I built a wall I’d ask to know what I was walling in or walling out, and to whom I was like to give offense.”