36 Wis. 50 | Wis. | 1874
This action is brought to recover damages for erecting and maintaining a nuisance, and for an abatement of the nuisance itself.
Among other objections which are taken to the complaint, on demurrer, it is claimed and insisted that it does not appear with sufficient certainty that the plaintiff was the owner of the premises affected by the nuisance at the time the acts complained of were committed. This objection is not well taken. It is distinctly averred that the plaintiff was the owner in fee and in possession of the premises described, and had for several years past been in the actual occupancy and possession of the same as and for a homestead, using them for agricultural purposes, and keeping in connection therewith a public inn or saloon for the accommodation and entertainment of the public. The complaint afterwards shows fully the nature and character of the nuisance, by which it is alleged the plaintiff is damni-fied. But it clearly appears, we think, that the plaintiff was the owner and in possession of the premises which it is claimed were injured by the nuisance.
It is further objected that the nuisance complained of is a common nuisance, and that the remedy for its abatement is by indictment or information by the state, and not by a private action brought' by an individual. The law is doubtless well settled, that no action will lie by an individual for the abatement of a common nuisance, unless special damage is alleged and proven by the party bringing such action. But when the aggrieved party suffers actual damages which are peculiar to himself, and not such as he suffers in common with the public at large, then the law gives him a right of action for his own special and particular injury. This rule is believed to be so elementary as to require no argument, nor the citation of authority in its support; and none will therefore be given.
If the plaintiff is a riparian proprietor, he has the undoubted right to enjoy the use of the waters of the river for his cattle and for domestic purposes without having their purity affected or their quality destroyed by the upper proprietor. And it would require no argument to show, in such a case, that the rights of the plaintiff would be most injuriously affected by the acts complained of, which corrupt and pollute the stream. But it is not entirely clear, upon the allegations of the complaint, that the plaintiff is entitled to this use of the water in consequence of being a riparian proprietor lower down the river. For, according to the description of his premises as given in his deed, there is reason for saying that they are limited to the river banJc, and do not in fact include the bed of
But this is not all there is of tbe complaint upon which a right to bring the action is founded. It is also stated -and alleged that, in consequence of the existence of the nuisance and the unhealthy condition of the surrounding atmosphere, the plaintiff has been and is now deprived of a great many customers and of much patronage in his business as a tavern or saloon keeper, and that his profits therefrom in his business have been diminished to the amount of at least five thousand dollars per year; that he and his family, consisting of himself and wife, have been and are, day and night, when at home, deprived of fresh, pure and healthy atmosphere, which they are entitled to enjoy, and which they did enjoy before the committing of the several acts and grievances by the defendants complained of, and are constantly exposed to the breathing of the most noxious and offensive miasma and malaria, which has greatly weakened and injured them in their health, and subjected them frequently to illness and indisposition. It
There is, however, another objection taken to the complaint, which we think must be sustained. It is, that several causes of action have been improperly united. It appears that Jacob Nunnemacher is the owner of the premises on which the nuisance is situated, and that he erected and, maintains it. He is doubtless liable for having created and maintained it. It is alleged also that the defendant Herman Nunnemacher ran the distillery and establishments therewith connected for one year or more previous to the month of May, 1873 ; that Jacob ran and operated the same from the month of May, 1873, to the month of August, 1873; and the other defendants, Christian Guenther and Hobert Nunnemacher, from the month of August, 1873, to the commencement of the action. Now, assuming as we well may, that the tenant is liable during his term for maintaining the nuisance, it seems clear that he cannot be held liable for damages sustained before and after the expiration of the term. Herman may be liable for the year ending May, 1873, together with his father; but upon' what ground can he be held liable after that'time? True, there is an allegation that the distillery has at different times been run and operated for the benefit and profit of all the defendants; yet this shows no joint liability. Because they derived a profit from the dis
By the Court. — The order of the circuit court, overruling the demurrer, is reversed, and the cause is remanded for further proceedings according to law.