De Longpre v. Carroll
50 N.W.2d 132
Mich.
1951
Check Treatment
Dethmers, J.

Defendant Nettie Carroll owns and operates kennels housing a large number of dogs at a location about a mile outside the city of Grand Rapids. There are several commercial establishments in the immediate vicinity, including a beer tavern, a garage, a drive-in restaurant, a bait sales place, a trailer camp, a resort pavilion and a trailer sales and camp supplies business, and also, within ,a radius of a quarter of a mile therefrom, about 20 homes. Some of the occupants keeр chickens, horses or dogs on and about their premises. Plaintiffs reside in the neighborhood. They brought this suit to enjoin operation of the kennels, charging that they constitute a private nuisance by reason of nоisome odors and noises emanating therefrom. Prom decree dismissing plaintiffs’ bill of complaint, they appeal.

Testimony in behalf of plaintiffs strongly' supported their claims of nuisance. That adduced in behalf of defendant discounted plaintiffs’ claims and tended to show that defendant’s ‍​​​​​‌​‌​​‌​‌​‌‌‌‌​​​‌‌​​​‌‌‌‌‌​​‌​‌​‌​​‌​‌‌​‌​​‍business was well conducted, did nоt unreasonably interfere with others in the neighborhood in their use and enjoyment of their homes and places of business and was *476 no.t, under all the circumstances, a nuisance. After hearing all the testimony and inspеcting the premises and observing the .manner of conclucting the business and the conditions there existing the trial judge concluded that plaintiffs’ claims and testimony as to noises and smells were exaggerated, that dеfendant’s recent installation of a gas incinerator for disposal of kennel refuse had remediеd such condition relating to odors as may theretofore have existed, that the kennels were in exсellent condition and very clean and that, as a matter of fact, the operation of the kеnnels did not constitute a nuisance.

Plaintiffs cite Ensign v. Walls, 323 Mich 49, and a number of other cases in support of their position. As we view it, however, the difficult question presented is one not so much of law as of fact. Did a nuisance exist as a matter of fact! The law applicable is not so difficult of ascertainment. No one is entitled, in every location and circumstance, to absolute quiet, or to air utterly uneontaminated by any оdor whatsoever, in the use and enjoyment of his property; hut when noises ‍​​​​​‌​‌​​‌​‌​‌‌‌‌​​​‌‌​​​‌‌‌‌‌​​‌​‌​‌​​‌​‌‌​‌​​‍are unreasonable in degrеe, considering the neighborhood in which they occur and all the attending circumstances, or when stenches contaminate the atmosphere to such an extent as to substantially impair the comfort or enjoyment of adjacent premises, then an actionable nuisance may he said to exist; and in applying these tests the question presented is one of fact rather than law. See 39 Am Jur, Nuisances, §§ 47, 53, 59, and People v. Wabash R. Co., 197 Mich 404, and Waier v. Peerless Oil Co., 265 Mich 398. In аffirming the trial court’s finding of fact that a nuisance existed in the Ensign Case, this Court said:

“Plaintiffs’ witnesses testified to conditions of such chаracter as to clearly ‍​​​​​‌​‌​​‌​‌​‌‌‌‌​​​‌‌​​​‌‌‌‌‌​​‌​‌​‌​​‌​‌‌​‌​​‍constitute a nuisance. On the other hand, defendant and her witnesses *477 clаimed that the business was well conducted and was not so obnoxious in character as to interfere with рlaintiffs or other residents in the neighborhood in the use and enjoyment of their homes. The trial judge inspectеd the premises of the defendant, and it appears from the record that his observations confirmed, in many respects at least, the proofs offered by plaintiffs with reference to the existing conditions. * * *

“As before stated, the testimony of the witnesses for the plaintiffs was not in accord with that given by the defendаnt and by others in her behalf. It was therefore for the trial court to ‍​​​​​‌​‌​​‌​‌​‌‌‌‌​​​‌‌​​​‌‌‌‌‌​​‌​‌​‌​​‌​‌‌​‌​​‍weigh the conflicting'testimony and to determine the actual facts. In so doing he was aided by his own observations of the premises and the manner in whiсh the business was conducted. In Northwest Home Owners Ass’n v. City of Detroit, 298 Mich 622, 643, it was said:

“ ‘We are appreciative of the fact that the trial court is in a much better position to pass upon the credibility of the witnesses than is the appellate court, by rеason of the opportunity as well as the advantage of seeing and hearing the witnesses during their examination, direct and cross. The appellate court is limited to a perusal of the record. We should not, therefore, reverse or modify the decree entered herein unless we are persuаded that it is not in accordance with the just rights of the parties. Langdell v. Langdell, 285 Mich 268; Moore v. Moore, 231 Mich 209.’

“The principle stated in the language above quoted may well be applied in the case at bar. It is apparent from the record thаt the facts were gone into fully and carefully by the ‍​​​​​‌​‌​​‌​‌​‌‌‌‌​​​‌‌​​​‌‌‌‌‌​​‌​‌​‌​​‌​‌‌​‌​​‍trial judge. The finding as to the facts was clearly suppоrted by proofs and justified the conclusion that defendant’s business constituted a nuisance as to the plaintiffs. # * *

“Looking to all the facts and circumstances involved, the question invariably presented is whether *478 the disсretion of the court should he exercised in favor of the parties seeking relief.”

Similarly, in the instant case, we conclude that the trial court’s finding of facts, supported by competent evidence, ought not to be disturbed by us and, being unpersuaded that it is contrary to the just rights of the parties, that the decree ought not to be modified or reversed.

Decree affirmed. Costs to defendant Nettie Carroll.

Reid, C. J., and Boyles, North, Butzbl, Carr, Bushnell, and Sharpe, JJ., concurred.