118 Wis. 362 | Wis. | 1903
This is an action at law, under sec. 3180, Stats. 1898, to recover damages for, and secure the abatement of, a nuisance. The alleged nuisance consists of stockyards, maintained by the defendant upon its depot grounds at the village of Cashton, from which offensive and injurious odors and noises are said to proceed' to the great discomfort of the plaintiff and his family. The evidence was entirely sufficient to sustain the findings of the jury, and the questions presented are purely questions of law.
The defendant is a railway company duly chartered and operating a railroad. It is bound by positive requirement of law to receive and transport freight tendered to it for shipment, and provide suitable facilities for receiving and handling the same at any of its stations. Stats. 1898, sec. 1198. It is also required to maintain a station at every village through which it passes which has a post office and a population of 200 people or more. Id. sec. 1801. It must receive for carriage all live stock offered to it from February 1st to September 30th, inclusive, and properly transport the same over its road. Id. sec. 1199a. In order to discharge the statutory duty of receiving and transporting live stock, it must have facilities for the purpose at its stations, or in some con-: venient place within a reasonable distance. Inasmuch as it
Much reliance was placed by the plaintiff upon Baltimore & P. R. Co. v. Fifth Baptist Church, 108 U. S. 317, 2 Sup. Ct. 719, and Anderson v. C., M. & St. P. R. Co. 85 Minn. 337, 88 N. W. 1001. In the first of these cases a railroad company had constructed a roundhouse and machine shop next to a church, and the noise seriously disturbed the religious exercises. This was held to be an actionable nuisance, but the fact plainly appeared in the case that the location was unreasonable, and that there were many other places in the city where the shop could have been placed, and answer all railroad purposes fully as well. These being the facts, it was held that the shop so situated was a nuisance, and that, whatever rights were conferred on the railroad company by its charter, they were subject to the qualification that their works should not be so placed as by their use to unreasonably interfere with and disturb the comfort of others. The case goes no further, and, when rightly understood, it does not antagonize the propositions already laid down in this opinion. The second case cited is a stockyards case, and contains language tending to justify plaintiff’s position here. In that case, however, the evidence established the fact that the yards were kept in an absolutely filthy condition, to the extent that dead animals were allowed to remain in them and become putrid. In view of these facts, the opinion must be read. The court said, in substance, that defendant’s claim was that it had a right -to select any place on its right of way for the reception and shipment of stock, but that it could not be conceded that a railroad company could rightfully create
The defendant attempted to introduce evidence showing that there was no other reasonably convenient and practicable location at Cashton for the yards, but the evidence was excluded. This was plainly error. Illinois C. R. Co. v. Grabill, 50 Ill. 241; Dunsmore v. C. I. R. Co. 72 Iowa, 182, 33 N. W. 456; Shirely v. C. R., I. F. & N. R. Co. 74 Iowa, 169, 37 N. W. 133. The verdict fails entirely to determine the fact whether the location was a reasonably proper one, and also fails to find- whether the company operated the yard upon approved methods, and used reasonable skill ándidili-gence in preventing unhealthy conditions and unpleasant noises therein. In the absence of findings on these questions, the judgment cannot be sustained.
By the Court. — Judgment reversed and action remanded for a new trial.