Wright v. Ulrich

40 Colo. 437 | Colo. | 1907

Mr. Justice Caswell

delivered the opinion of the court:

This suit was instituted in the district court of Fremont county by the appellee (plaintiff below) to restrain the appellants from rebuilding and operating a slaughter-house adjacent to plaintiff’s premises and dwelling house, which she and her family had occupied for about twenty years.

It seems that the first slaughter-house, which had been erected some eight or ten years prior to the commencement of this suit, was destroyed by fire and that plaintiff had objected to the rebuilding of the house and had objected to and complained of the injury and inconvenience to her on account of the odors from the slaughter-house and its use, and the noise resulting from the keeping of cattle in pens adjacent to the slaughter-house.

The answer in effect is a denial of the allegations of the complaint and defendants also plead the statute of limitations.

The main contention of appellants as set forth in their brief is that there is not sufficient evidence to support the allegations of the complaint, that there is. not sufficient evidence to support the judgment, and that the judgment is based upon “a remote sentiment of future possible annoyance, not warranted by the facts.”

The record does not support this contention. It is clearly shown by the abstract, and the additional abstract filed by appellee, that the plaintiff had suffered much annoyance and inconvenience because of the odors and stenches which had emanated from the use of the slaughter-house. This is shown not only by the evidence of her own family, but strangers to the suit testified positively as to the sickening odors which had reached them from the slaughter-house at a point about the same distance therefrom as plaintiff’s dwelling house. Indeed there was not very much conflicting testimony. However, this matter was submitted to a judicial determination and the court found as a fact that the maintenance and operation of the slaughter-house and its adjuncts by defendants, “constituted and constitutes a continuing nuisance, resulting in rendering plaintiff’s occupancy of her dwelling house and premises described in the complaint in this canse disagreeable and uncomfortable by reason of the noxious vapors and noisome smells and stenches emitted therefrom which are a constant menace to the health of plaintiff and her family, materially impair the usefulness of said property and greatly decrease its value. That the damages to plaintiff therefrom are of such a nature and character, of such proportions and so peculiar to herself as to entitle her to equitable relief herein. ’ ’

We think the findings of the court are amply sustained by the evidence. We do not find any error in the law as applied by the trial court to this case. Without entering into an extended discussion of the law concerning nuisances, both public and private, the City of Denver v. Mullen et al., 7 Colo. 345, furnishes ample authority for the plaintiff to maintain this action. The suit is manifestly to abate the nuisance, regardless of damages, and any private nuisance may be abated by the party aggrieved.

In Wood on Nuisances, § 22, it is said that the question of what constitutes a nuisance is for the court and not for the jury to determine; and whether the results of a given business are so as to amount to a public nuisance, is a question for the jury. In the case at har a jury was waived and trial was had to the court, and the court passed'upon both these questions adversely to the appellant. .At page 692, Am., & Eng. Enc. of Law, it is said: “It may be laid down broadly as a general rule that any act, omission or use of property which results in polluting the atmosphere with noxious or offensive effluvia, gases, stenches, or vapors, thereby producing material physical discomfort and annoyance to those residing in the vicinity, or injury to their health or property, is a nuisance,” and many cases are cited in support of this doctrine. We know of no decisions to the con-ti'ary and none are pointed ont to us. Page 697 of the same volume states: “When the noises made by animals kept in a residence neighborhood is of a distressing or annoying character, it is a nuisance. ’ ’

The case was not barred by the statute of limitations. It is held in the ease of Home Supply Ditch Co. v. Hamlin, 6 Colo. App. 341, that “the continuing of a trespass or nuisance from day to day is considered in law a several trespass on each day, ’ ’ and it was further held in that case that “the nuisance or trespass was continuous, and the subsequent damage continually being incurred, that the ditch company was liable until the nuisance was abated and the cause of damage removed, and that the law of continuing nuisances and continuing trespasses is, admittedly, the same. ’ ’ It follows that the plaintiff could have sought a decree abating the nuisance at any time'during its existence unless she had estopped herself, by some act or agreement, to complain of the nuisance. No estoppel was pleaded, proven or claimed in the case at bar.

Perceiving no error in the record, the judgment is affirmed. Affirmed,.

Chief Justice Steele and Mr. Justice Maxwell concur.