198 P. 441 | Mont. | 1921
prepared the opinion for the court.
The trial was had before a jury and it returned special findings of fact as follows:
“1. Was the slaughter-house, mentioned in the complaint in this action, in such a condition from the time of the erection of the septic tank to the trial of this action that it complied
“2. If you find that the plaintiff has suffered any damages by reason of the acts complained of, how much of said damages was suffered by reason of plaintiff’s being deprived of the use of the slaughter-house for slaughter-house purposes? Answer: None.
“3. What is the reasonable rental value per month of the house and the garden in connection therewith? Answer: $15 per month.
“4. If you find that the plaintiff has suffered damage by reason of the acts of the defendant, was such damage suffered by reason of the defective construction of the septic tank, or the failure to properly manage the same? Answer: Failure to properly manage”; and a general verdict for the plaintiff in the sum of $2,000. Defendant appeals from the judgment and order denying a new trial.
Error has been predicated in nineteen assignments, all of which will be treated under the following heads: Sufficiency of the complaint; sufficiency of plaintiff’s evidence under the allegations; excessiveness of the verdict in view of the special findings and the evidence; immaterial and incompetent matters testified to at the trial tending to confuse the jury; the giving and refusing of certain instructions.
That the complaint is sufficient has been definitely settled by this court in Dawes v. Great Falls, 31 Mont. 9, 77 Pac. 309. We also think no fatal error shows in the instructions.
Practically all of plaintiff’s case is devoted to the showing that the “lower 80” was the portion of plaintiff’s lands, the air over which and the water thereon were subject to the detriment of the noisome smells and water pollution, with consequent unfitness for use or rental by plaintiff, and that the air over the road traveled by plaintiff in the use of his property had been vitiated. Plaintiff’s evidence shows that the witness Smith was compelled to leave plaintiff’s house, in which he had lived, on account of disagreeable odors, and the house had been vacant for one year at least prior to the trial; that plaintiff had not used his property without annoyance for practically two years; that he suffered no loss from his purchase of machinery; and that the nuisance was abated a short time prior to the date of this trial. The evidence of the defendant sharply conflicts with that of the plaintiff, but its weight and the credibility of the witnesses were solely within the province of the jury.
For the reasons herein stated, we recommend that the judgment and order appealed from be afSrmed.
For the reasons given in the foregoing opinion, the judgment and order appealed from are affirmed.
Affirmed.