86 N.W. 356 | N.D. | 1901
Action to abate an alleged nuisance. The parties to this action occupy residences situated upon adjoining lots in block 32, in Keeney & Devitt’s Second addition to the city of Fargo. The alleged nuisance consists of a privy, which the defendant Susan A.
We are limited, by the record presented on this appeal, to a consideration of the single question whether the findings made by the trial court sustain the judgment appealed from. The issues of fact are not here for trial de novo. A statement of the case is contained in the record which embraces all the evidence offered in the trial'court, but it contains neither a demand for a retrial of the entire case nor of any particular fact. Under these circumstances, we are without authority to retry all or any of the facts in issue. Bank v. Davis, 8 N. D. 83, 76 N. W. 998; Erickson v. Bank, 9 N. D. 81, 81 N. W. 46; Ricks v. Bergsvendsen, 8 N. D. 578, 80 N. W. 768; Hayes v. Taylor, 9 N. D. 92, 81 N. W. 49; Mooney v. Donovan, 9 N. D. 93, 81 N. W. 50.
From an examination of the findings contained in the judgment roll, it appears that the trial court expressly found that the privy of which plaintiffs complain is not a nuisance. Such structures are common accessories to well ordered residences, and are not nuisances per se. They may become so under some circumstances. But the question whether a privy is a nuisance is a question of fact to be determined on the evidence in each case. Douglas v. State, 4 Wis. 387; Smith v. Russ, 17 Wis. 234, 84 Am. Dec. 739; People v. Carpenter, 1 Mich. 273. In Hart v. Mayor, etc., 3 Paige, 218, it was said that “the question of nuisance or no nuisance is always a question of fact.” See, also, Com. v. Colby, 128 Mass. 91; Pilcher v. Hart, 1 Humph. 524. The trial court having found that the privy in question is not a nuisance in fact, the judgment for defendants followed necessarily, and the same must be affirmed; and it is so ordered.