This section contains the nature of the case and procedural background.

In 1966 Bushnell sold a motel to Ds. Bushnell then built another motel, the Desert Inn, on property immediately adjoining that sold to Ds. Ds brought an action against Bushnell based on alleged misrepresentations. In 1968 Ds built a large structure, variously described as a fence or sign, some 16 inches from the boundary line between the properties. The structure is 85 ft. in length and 18 ft. in height. It is raised 2 ft. off the ground and is 2 ft. from the Desert Inn building. It parallels the entire northwest side of the Desert Inn building, obscures approximately 80% of the Desert Inn building and restricts the passage of light and air to its rooms. P sued seeking damages and injunctive relief, compelling the removal of the structure. The district court found that the structure was erected out of spite and that it was erected in violation of a municipal ordinance. The trial court ordered the structure reduced to a maximum height of 6 ft. Ds appealed.

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