105 Wis. 470 | Wis. | 1900
This action was commenced September 24, 1897, to have a sertain structure and establishment maintained by the defendants, where dead animals and the carcasses and offal therefrom are converted and manufactured into marketable products, located uppn the land described, upon the banks of the Menominee river, adjudged to be a private nuisance to the plaintiff, and to abate the same, and to recover damages on account thereof, and for an injunction. The plaintiff alleges, in effect, the facts stated, and also that the defendants have maintained such plant ever since August 26,1897; that during that time the defendants have daily caused the blood and offal from such animals to be deposited in the waters of the Menominee river, a running stream flowing through the town of Wau-watosa, and through the cities of Wauwatosa and Milwaukee, and the waters of which by such deposits were and are , polluted, and rendered un wholesome and unfit for use for watering stock or any domestic purpose; that, by reason of
At the close of the trial the court found, as matters of fact, in effect, that the plaintiff is, and for more than three years last past has been, the owner in fee and in possession of the lot described, together with the dwelling house thereon, in which he resides and has ■ resided during such period; that at the time of the commencement of this action the defendant Schneidt was maintaining and for many years next preceding that time had continuously maintained and operated, upon the premises described in the complaint, an establishment for the manufacture of hair, and for a number of years next prior to the commencement of this action had used such establishment for the purpose of rendering dead animals, and converting their substance into a merchantable product; that during such time he has, on an average, rendered daily one or more dead horses and other dead animals; that the premises described contained eight acres of land; that the defendant city of Milwaukee never maintained or operated the establishment, but that ever since August 26, 1897, until the commencement of this action, that city delivered to the defendant Schneidt, at his establishment, such dead animals as were found in the streets of that city, for the purpose of having the carcasses thereof rendered by the defendant Schneidt at his establishment;
And as conclusions of law the court finds, in effect, that the plaintiff is not, and has not been, injured by any of the doings of the defendants, or either of them; that the plaintiff is not, and was not at the commencement of this action, entitled to any injunction herein; that the complaint herein should be dismissed on the merits; that the defendant Sohneidt is entitled to recover of the plaintiff his costs and disbursements in this action. It was therefore ordered that judgment be entered dismissing the complaint on the merits, and for the recovery by the defendant Sohneidt of his costs and disbursements to be taxed.
Erom the judgment thereupon in favor of the defendants and against the plaintiff, dismissing the complaint upon the merits, with costs and disbursements to be taxed in favor of the defendant Sohneidt, the plaintiff brings this appeal.
It is contended that the city of Milwaukee had no authority to dispose of dead animals found therein outside of the city limits in the manner indicated. The argument is that ¿he statute only gave authority “ to provide by contract or
It is contended that the statute which prohibits any person from erecting, maintaining, or keeping any slaughterhouse upon the banks of any river, running stream, or creek, or throwing or depositing therein any dead animal, or any part thereof, or any carcass or offal therefrom, etc., makes, the operation of the plant in question a nuisance. Sec. 1418, Stats. 1898. But the facts found by the court, as above stated, do not bring the case within the provisions of that section, and there seems to be plenty of evidence to support such findings. But, even if the facts were sufficient to bring the case-within the purview of the section, yet, as held upon the former appeal, a court of equity was justified in refusing to restrain such illegal acts merely because they were illegal,, unless it was made to appear that such acts were injurious, to the property or property rights of the plaintiff. 99 Wis. 201.
This brings us to the important question whether the plant, as operated by the defendant Schneidt during the time in question, was a nuisance to the plaintiff and his family, residing in a house about 387 feet from ScJmeidfs land, and about 439 feet from his building. The main building is described by counsel for the plaintiff as being, in effect, 100 feet, long and fifty feet wide, six stories high, with an addition thereto forty feet square. There are ninety swinging windows on each of'the north and south sides of the main building, making 180 windows in the north and south sides of the building, having no glass in the upper floors. There are 304 windows in the building, besides two doors. In addition to this, there are two doors fronting south on the main building,— one about eight feet wide, where they drive through from the north and south with dead animals,
The defendant Sohneidt, whose deposition, taken under .sec. 4096, Stats. 1898, was put in evidence by the plaintiff, testified, among other things, in regard to the operating of the plant, to the effect that what he means by process of rendering or converting is not in the old style; it is a new ■system entirely; it is reducing, destroying, doing away with, — That is what he means; that there is no rendering in open kettles or retorts; that what they do with the animals is to clean them,— that is the first part of the industry ; that the next thing they- are chopped into pieces large •enough to go in a large, steel, steam-tight tank, called “a ■digester;” that when the animals are in the tank the manhole is closed, and the steam turned on; that there is nothing that can escape,— no steam, or gas, or anything; that that is all they do with the animals; that while the animals are being skinned they are taken inside the building, which is large enough for the few horses they have during a particular time; that the building is 100x50 feet; that he could put in the kettle the full capacity, which would be eleven •or twelve, according to the size of the animals themselves,— if small, twelve, if large, probably only nine; that from the time they receive the animal on the floor and put it in the tank it takes about thirty-five minutes for each animal; "that the receptacle or vessel where they put these animals is called the tank or “ digester; ” that this tank remains ■open during the process of skinning and cutting; that under the contract he had no consideration stipulated to be paid
There is plenty of evidence that the premises were in as clean and sanitary condition as such an institution could well be kept; that no dead animals were permitted to lie around, but were all in the tank when in operation; that, there was an odor peculiar to all rendering establishments; that upon going through the building from the ground floor-to the top, nothing could be detected that could be considered particularly offensive; that the drain or sewer leading-from the building down to the catch-basin was covered, and the catch-basin itself was covered; that the catch-basin contained a large amount of dark-colored fluid; that from the upper to the lower catch-basin the overflow of such fluid was carried in a covered drain; ''and from the lower catch-basin the overflow was carried in a covered drain to the river; that the odor along the drains was not particularly offensive, and several say not offensive at all; that the small stream of water running from the drain into the river was. perfectly clear; that at that point in the river there was no scum on the water or stones; that small fish were swimming around in the river at the point where the drain emptied into it.
Assuming it to be true, there is certainly plenty of evidence to support the findings of the trial court. On the contrary, there is plenty of evidence to the effect that within a radius of 1,500 feet from the plant in question there are two school buildings and numerous families, and that at certain times the smells from the plant are very bad and.
By the Court.— The judgment of the superior court of Milwaukee county is affirmed.