Gifford v. Hulett
62 Vt. 342
Vt.
1890
Check Treatment

The opinion of' the court was delivered by

Taft, J.

We consider those facts only which the master reports as existing at the time the bill was served. The exceptions to the report, therefore, become immaterial. The barn was not a nuisance per se. Do the facts reported show it was so improperly and negligently used at the time the bill was brought, that such use became and was a nuisance? This must be determined upon the facts found by the master, viz.: Horses

were kept in the barn and manure from them thrown out and allowed to accumulate within twenty feet of the orators’ dwelling : the manure became unpleasant; the odor was noticeable at the house and in the yards of the orators and was sometimes quite offensive; that the smell from such accumulations is very offensive to a majority of people, and in such cases a continuance of it will, in a greater or less degree, affect the appetite and general health unfavorably; it in part caused the oratrix to be in a feverish and nervous condition, and she was disturbed by the horses and her rest broken thereby.

These facts bring the case within the general definition of a nuisance, which is a term for all practices, avocations, erections, establishments, etc., against which courts will give relief, although they are not intrinsically criminal, because of their tendency to create annoyance, ill health or inconvenience. 2 Abb. Law Die. title, Nuisance. Our attention is called to the case of Curtis v. Winslow, 38 Vt. 690, but in that case the court evidently were of the opinion that the use of the barn 'was proper and not a nuisance. In this respect all that is stated in the opinion is that the orator’s tenants complained of the smell and noise from the defendant’s stable, but there was no finding that the complaints were well founded or were true. In the case at bar, the barn could have been so located that no annoyance would *347result from its use, with but little more expense than if built in its present location, and nearly as convenient for the defendants; and while a person has a right to do with his own as he pleases, the right is subject to the limitation that he must do it with reference to the comforts and rights of his neighbor; sic utere tuo ut alienum non Iccdas. The barn can be used for its legitimate purposes so as not to become manifestly and seriously injurious, but we think that it was so improperly and negligently occupied that it became and was a nuisance to the orators; and in respect of the matters complained of and found to be true by the master, they are entitled to the relief afforded them by the temporary injunction, i. e., the barn must not be used in any manner creating a nuisance to the orators, with costs in this court; the costs in the court of chancery to be determined by that court.

Deer"'- ■•■'versed and cause remanded, with mandate.

Munson, J., cb\ not sit, having acted as special master.