Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 9. Liability without Fault?
equal right under the law to build to the line of their respective tracts and to such a height as is
desired by them (in in absence, of course, of building restrictions or regulations) amounts, in our
opinion, to judicial legislation. . . .
Since it affirmatively appears that the plaintiff has not established a cause of action
against the defendants by reason of the structure here in question, the order granting a temporary
injunction should be and it is hereby reversed with directions to dismiss the complaint.
Reversed with directions.
Notes
1. The doctrine of ancient lights. According to William Blackstone, the ancient lights
doctrine prohibits one from “erect[ing] a house or other building . . . [that] obstructs [others’]
ancient lights and windows.” 3 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF
ENGLAND 216-17. In England, the ancient lights doctrine enabled landowners to enforce their
right to light by bringing a nuisance claim against alleged tortfeasors.
In contrast to English courts, American courts have refused to apply the doctrine of
ancient lights. Why has American jurisprudence diverged from English jurisprudence?
According to one court, American judges have rejected the ancient lights doctrine to encourage
economic development. See Parker v. Foote, 19 Wend. 309, 318 (N.Y. Sup. Ct. 1838) (noting
that the doctrine could not “be applied in growing cities and villages of this country without
working the most mischievous consequences”); see also Klein v. Gehrung, 25 Tex. Supp. 232,
238 (1860) (“The doctrine of ancient lights is not much relished in this country, owing to the rapid
changes and improvements in our cities and villages.”).
2. A malice exception? Although American courts have repudiated the doctrine of ancient
lights, malice is one of the few exceptions that some courts recognize to the ancient lights doctrine
in the United States. Daniel B. Kelly, Strategic Spillovers, 111 COLUM. L. REV. 1641, 1667-68
(2011). Thus, courts regularly prohibit a defendant from building a “spite wall” or “spite fence” if
the “structure interferes with a neighbor’s access to light, air, or a view if the [defendant’s]
motivation is . . . malicious.” Id. at 1668. Courts that recognize the malice rule typically require
plaintiffs to show that malice was the sole, if not predominant, motivation for the defendants’
actions. Wilson v. Handley, 119 Cal. Rptr. 2d 263 (Ct. App. 2002).
Why does the Florida court in the Fontainebleau case reject the malice rule and permit the
spite wall?
3. The epic battle between the Fontainebleau and the Eden Roc. The spite wall in
Fontainebleau, pictured below, was built by the angered owner of the Fontainebleau Hotel when
his business partner defected to a competitor and built a new hotel—the Eden Roc—directly to his
north. Both hotels aimed to set new standards for luxury in the Miami hotel trade. Leading
celebrities of the 1950s, including Elizabeth Taylor and Lucille Ball, appeared regularly at the
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