188 P. 900 | Mont. | 1920
delivered the opinion of the court.
This action was commenced against Silver and others to enjoin the operation of a stone quarry and rock-crusher in a residential portion of the city of Butte. The cause was tried to the court without.a jury, and resulted in judgment for respondent and the issuance of a permanent injunction against Silver and one William Mackey; motion was made for a new trial and denied, and appeal taken by Silver alone from the judgment and from the order denying the motion for a new trial.
While there are a number of specifications of error, the whole question presented thereby is as to whether the evidence was sufficient to warrant the court’s findings and injunction order as against this appellant. It is not contended that the evidence
The undisputed testimony is that appellant was the sole owner
.If we consider the facts a's applying to the relation of
“Where there has been a nuisance of continued existence upon •demised premises, the lessor and the lessee may both be liable for the damages resulting therefrom — the lessee in the actual occupation of the premises, if he continues the nuisance after notice of its existence and request to abate it; and the lessor, if he first created it, and then demised the premises with the nuisance upon them, and at the time of the damage resulting therefrom is receiving a benefit therefrom by way of rent or otherwise.” (Jones on Landlord & Tenant, sec. 603.)
On the other hand, if we take the view that Mackey was an
Appellant contends that finding No. 5 is erroneous, because-based on evidence stricken from the record. While some such evidence was, as pointed out, stricken, the same testimony was. permitted to go in without objection on another occasion.
We find no error in the record. The judgment and order are affirmed.
Affirmed.