Ingwersen

The evidence shows without conflict that the structure which the complaint denominates a fence, and which it is sought to have abated as a 'nuisance, was erected and stands wholly upon the lot of defendant. In view of that fact, the question much controverted by counsel, whether the evidence sustains the implied finding of the jury that the structure is a fence, is wholly immaterial to the rights of the parties. Whether it was shown to be a fence, or, as contended by defendant, a building erected and used for domestic purposes, the plaintiff established no right to have it abated. The theory upon which plaintiff bases his claim that the structure is a nui- *343 sauce is that it was unlawfully constructed in violation of an act of the legislature passed March 9, 1885, “regulating the height of division fences and partition walls in cities and towns” (Stat. 1885, p. 45), and that it interferes with the comfortable enjoyment of his property by obstructing the access of light and air to the building on his abutting premises.

But, assuming that the structure was properly found to be a fence, it is not within the inhibition of that statute. In the quite recent case of Western Granite…