Anstee v. Monroe Light & Fuel Co.

171 Wis. 291 | Wis. | 1920

Vinje, J.

As far as the damages resulting from an infiltration of the soil and from a pollution of the well are concerned, they are special to the plaintiff to the extent that he may maintain an action therefor and for an abatement of the nuisance. Clark v. C. & N. W. R. Co. 70 Wis. 593, 36 N. W. 326. It is true that the court found that some twenty other wells in the vicinity were more or less affected by the pollution of the soil; but all such wells were on premises adjacent to Thunder river, the small stream that flowed past the gas plant and through a portion of plaintiff’s premises. The industrial waste was carried “down the stream and affected the soil on both sides thereof for a considerable distance. This fact made the premises of those affected stand in a different relation to the nuisance than those of the rest of the public. It is not essential to a maintenance of the action that plaintiff alone should be affected by the nuisance. It is sufficient that he belongs to a class specially affected by it and whose damages differ not only in degree but also in kind from those of the public generally. Clark v. C. & N. W. R. Co. 70 Wis. 593, 36 N. W. 326; Tilly v. Mitchell & Lewis Co. 121 Wis. 1, 98 N. W. 968; Baier v. Schermerhorn, 96 Wis. 372, 71 N. W. 600; Mahler v. Brumder, 92 Wis. 477, 66 N. W. 502; Stone v. Oconomowoc, 71 Wis. 155, 36 N. W. 829.

As to the smoke nuisance, the evidence shows that plaint-ill’s house was located about 1,200.feet from the gas plant and that frequently the smoke was so thick and the odor from it so bad that it affected the comfort if not the health of plaintiff and his family. Under the principles above stated, this damage was also special to plaintiff because of his nearness to the plant.

Considerable-effort was spent by defendant in contending that the assessments of $1,200 damages to the soil and of $100 to the well are excessive. We have carefully gone over the evidence with the result that we find it sustains the assessments. The injury to the soil affected its productiveness and, while not permanent in its nature, was likely to endure for many years. The testimony of a number of apparently disinterested and competent witnesses was to the effect that the market value of the premises was reduced several thousand dollars frd'm the -soil infiltration alone, and the well was shown to be wholly unfit for domestic use by reason of pollution and that it would take a long time before the purity of its water would be restored. We find no basis in the evidence for reducing the amount of damages found by the court.

Since no further recurrence of the nuisance is likely to take place, the court properly assessed damages for future as well as past injury to soil and well occasioned by the acts of the defendant complained of. In this way, and in this way only, could plaintiff be made whole in one action for the loss sustained by him by reason of the acts of nuisance already committed by the defendant.

By the Court. — Judgment affirmed.