¶1These are both actions under St. of 1887, c. 348. We have decided that the statute is constitutional in Rideout v. Knox, ante, 368. The plaintiff had never occupied the premises, and there was no evidence of any injury to her or to her tenants, except what the jury may have gathered from a view. The judge ruled that as it appeared that the plaintiff’s estate was occupied solely by tenants, she was not entitled to recover, and directed verdicts for the defendant.
¶2Notwithstanding the use of the word “ nuisance,” § 1 of the statute in no sense creates an easement in favor of the plaintiff’s *410land, but only makes it unlawful to do malevolently what the defendant still has a right to do from other motives. This right of action is given by § 2 to an “ owner or occupant, injured either in his comfort or the enjoyment of his estate by such nuisance.” This means, we think, that the owners may have an action under some circumstances, although not in occupation.
¶3This action is for causing personal annoyance for the sake of annoying, and to attempt to answer the question whether the annoyance suffered is within the act, by deciding whether there is an injury to the reversion by the principles of the common law, is likely to mislead. We agree that the comfort or enjoyment which must be enjoyed must be comfort or enjoyment in the use of the premises, and that it is not enough that an owner not in occupation is disturbed in his mind when he thinks about the fence. But we are of opinion that such an owner might suffer an actionable injury. If the fence was likely to diminish his rents, or to make it more difficult to get tenants, the injury to his comfort or the enjoyment of his estate on account of that reasonable anticipation would be within the act. The jury might be able to say upon a view that the fence would have that effect. What they see is evidence in the case. Parks v. Boston, 15 Pick. 198, 209. Tully v. Fitchburg Railroad, 134 Mass. 499, 503. Hanks v. Boston & Albany Railroad, 147 Mass. 495.
¶4If the motives for allowing the fence to stand are malicious, as explained in Rideout v. Knox, the defendant may be liable, although he has done no act upon it since the passage of the statute.
¶5New trials granted.