Meiners v. Frederick Miller Brewing Co.

| Wis. | Dec 16, 1890

Ltox, J.

This is essentially an action in equity to procure the abatement of a public or common nuisance, for there can be no doubt the effect of the defendant’s acts and omissions charged in the complaint is to create and continue a public, as distinguished from a mere private, nuisance. ' The averments of special and peculiar injury and damage to the plaintiff caused thereby are only necessary to show his right to bring a private action to abate the nuisance. Without them, the complaint would be demur-rable. If no person suffers such special injury and damage because of the existence of a public nuisance, the proceeding to abate it must be in behalf of the state. The defense of prescription does not lie either to a public prosecution or a private action to abate a common nuisance. These propositions are too well settled to require discussion or citation of authority.

The gravamen of the action is the public nuisance, and the plaintiff must prove its existence or he cannot recover. Under his complaint herein, proof of a private nuisance alone would not sustain a recovery. If he would sue for a mere private nuisance, he must count on that alone. This being an action to abate a common nuisance and nothing more, the defense of prescription is not available. It is said in Wood, Nuis. § 727, that “there can be no prescription for a .public nuisance of any kind or description, and as to whether or not a person exercising a trade or occupation which is a public nuisance can acquire a prescriptive right to carry on the same, as against private or individual rights, is a question which, in this country, has never been definitely settled, but I think there can be no question but that, as a result of all the cases, such a right is not generally recognized.” "We think the rule here suggested is the better one, and do not hesitate to adopt it. Hence, the circuit court did not err in requiring the defendant to expunge that defense from the proposed answer.

The imposition of costs, and the amount thereof, as conditions of granting the motion, are within the sound discretion of the trial court, and cannot properly be interfered with on appeal unless there has been a clear abuse of discretion. Although the terms imposed were quite liberal to the plaintiff, we are unable to say that there was any such abuse in fixing the amount thereof at $25. The learned circuit judge wTas in a better position to fix the amount properly than we can be on a mere perusal of the record. Besides, the amount is not large, considering the importance of the case, and considering also that facts and circumstances may have existed, not apparent to us, which might properly have influenced his judgment. •

By the Gourt.— The portion of the order appealed from is affirmed.