87 Wis. 536 | Wis. | 1894
The plaintiff’s land runs along on the north side of the highway. His residence is on the southeast corner of his land. The defendant’s creamery is situated just south of the highway, and nearly opposite the plaintiff’s residence. Near the creamery the defendant constructed a well or cesspool, into which the waste matter from the creamery was caused to flow. The bed rock of
Undoubtedly, a nuisance, to be actionable, must materially affect or impair the comfort or enjoyment of the person complaining, or the use or value of his property. Stadler v. Grieben, 61 Wis. 500. This court has held that any business, though in itself lawful, which necessarily impregnates large volumes of the atmosphere with disagreeable, unwholesome, or offensive matter, may become a nuisance to those occupying adjacent property, in case it is so near, and the atmosphere is contaminated to such an extent, as
At an early stage of the trial in the case at bar the court in effect expressly ruled that the case would be determined on the condition of things as they were in 1892, and not as they were before the new drain was constructed, and hence that all testimony in regard to the condition of things in 1890 and 1891 would be regarded as immaterial. It may be that at the time of the commencement of this action, and for a short time before, the atmosphere in and about the plaintiff’s residence was not contaminated to such an extent as to substantially impair his comfort or enjoyment of the same, and hence that an injunction should not be granted upon that ground alone. But the case presented is not confined to the contamination of the atmosphere, even in 1892. On the contrary, the filth from the defendant’s creamery was then actually being cast upon the plaintiff’s premises. The case is different from the mere pollution of the atmosphere or the waters of a natural stream by some customary use while passing over the defendant’s premises. It is worse. It is the invasion of the plaintiff’s premises with an offensive foreign substance by means of artificial appliances.
In Tenant v. Goldwin, 1 Salk. 360, 2 Ld. Raym. 1092, Lord Holt, C. J., said: “ If the defendant has a house of office [privy], and the wall which separates the house of office from the plaintiff’s house is all the defendant’s, he is, of common right, bound to repair it. . . . The reason is that every one must so use his own as not to do damage to another. And, as every man is bound so to look to his
The injury inflicted upon the plaintiff and his premises is permanent in its nature. The defendant should be perpetually enjoined from causing filth to flow upon the plaintiff’s premises, either directly, by percolation, or otherwise. Equity having thus acquired jurisdiction in the case, it may retain the same and adjudge to the plaintiff reasonable and adequate damages for past injuries.
By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for further proceedings in accordance with this opinion.