Pennoyer v. Allen

• Decision Date: 09 January 1883
• Citation: 56 Wis. 502,14 N.W. 609
• Parties: PENNOYER AND OTHERS v. ALLEN AND OTHERS.
• Court: Wisconsin Supreme Court

56 Wis. 502

14 N.W. 609

PENNOYER AND OTHERS

v.ALLEN AND OTHERS.

Supreme Court of Wisconsin.

Filed January 9, 1883.

Appeal from circuit court, Kenosha county.

This is an action to recover damages accruing to the plaintiffs between September 11, 1873, and January 1, 1878, by reason of the maintenance of a tannery, alleged to have been a nuisance, by the defendants adjacent to the water-cure establishment of the plaintiffs in Kenosha, and for the abatement of such nuisance. The answer, among other things, set up a prior action by one of the plaintiffs against one of the defendants, and the settlement thereof, September 24, 1867, whereby such plaintiff, by release under seal, discontinued such action without costs, and acknowledged satisfaction and discharge of the damages claimed in the complaint, and thereby confirmed to the defendant therein, his heirs and assigns, the rights claimed in the answer on file therein. The answer also set up 10 years, and 20 years, adverse user, under claim of title to the lots upon which the tannery stood, exclusive of any other right. The answer also set up, by way of equitable counter-claim, the investment of large amounts of money in the construction of buildings and improvements for the tannery business upon their lots, and such adverse user, and demanded judgment, that, as against the plaintiffs, or either of them, and all persons claiming under them, they should have the absolute right to keep and maintain their tannery, and prosecute their business, and send over and upon the premises of the plaintiffs, odors, vapors, smoke, and soot from the said tannery, and necessarily arising from the operation of such tannery. The plaintiffs demurred to the counter-claim, and the same was sustained by this court, 50 Wis. 308, [S. C. 6 N. W. REP. 887,] whereupon the cause was tried by the court and a jury, who at the close of the trial, under the instructions of the court, returned a special verdict for the defendants as follows:

“(1) Have the defendants frequently, between the eleventh day of September, 1873, and the first day of August, 1878, by the operation of their tannery and the business connected therewith, sent over and upon the premises of the plaintiffs disagreeable and offensive odors, to such an extent as to materially interfere with their comfortable enjoyment of the said premises? Answer. No.

MOSES BUSWELL, Foreman.

(2) Has the business of the plaintiffs, in their water-cure establishment, been injured between the eleventh day of September, 1873, and the first day of January, 1878, by reason of disagreeable and offensive odors proceeding from the tannery of the defendants? A. No. MOSES BUSWELL, Foreman.

(4) Has the rental value of the plaintiffs' premises, between September 11, 1873, and January 1, 1878, been affected by reason of disagreeable and offensive odors proceeding from defendants' tannery, and, if so, state how much and to what extent has it been affected? A. No.

MOSES BUSWELL, Foreman.

(6) Did the defendants, between the eleventh day of September, 1873, and the first day of January, 1878, materially enlarge the tannery and substantially increase the business conducted therein? A. Yes.

MOSES BUSWELL, Foreman.

(7) Did the defendants, from the eleventh day of September, 1873, to the first day of January, 1878, operate their tannery and the business connected therewith in a reasonable and proper manner? A. Yes.

MOSES BUSWELL, Foreman.

To which said question plaintiffs objected, which objection the court overruled, and plaintiffs duly excepted.

(8) Did the defendants, from the eleventh day of September, 1873, to the first day of January, 1878, in the operation of their tannery and the business connected therewith, send over and upon the premises of the plaintiffs any odors other than such as are incident to a tannery properly conducted? A. No.

MOSES BUSWELL, Foreman.

The plaintiffs objected to this question, and duly excepted to the submission of the same to the jury.

(9) Did the defendants, between the eleventh day of September, 1873, and the first day of January, 1878, in the operation of their tannery and the business connected therewith, send over and upon the plaintiff's premises offensive odors of such character and to such a degree as to substantially impair the uses and enjoyment of such premises to the plaintiffs and their families? A. No.

MOSES BUSWELL, Foreman.

(10) How long has the tannery of the defendants been established and operated? A. About 24 years.

MOSES BUSWELL, Foreman.

To this question plaintiffs objected, and excepted to the submission of the same to the jury.

(11) Have the plaintiffs known of the enlargements of the tannery which have been made from time to time since the plaintiffs, or either of them, became interested in the water-cure, at the times such enlargements were made? A. They did know and did not object.

MOSES BUSWELL, Foreman.

To this question the plaintiffs objected, and duly excepted to the submission of the same to the jury.

(12) Have the plaintiffs, or either of them, made objections to the defendants, or either of them, to any of the enlargements of the tannery apart from the suit brought in 1866? A. No.

MOSES BUSWELL, Foreman.

To this question plaintiffs objected, and duly excepted to the submission of the same to the jury.

(13) Did the defendants, between September 11, 1873, and January 1, 1878, render fleshings and refuse from hides on the tannery premises? A. No.

MOSES BUSWELL, Foreman.

To this question plaintiffs objected, and duly excepted to the submission of the same to the jury.

(14) Do you find for the plaintiffs or for the defendants? A. Defendants.

MOSES BUSWELL, Foreman.

To which question the plaintiffs objected, and duly excepted to the submission of the same to the jury.”

Thereupon, and at the same term, the plaintiffs' counsel moved, upon the minutes of the court, to set aside the verdict and for a new trial, on the grounds that the verdict was against the law and the evidence, and that the judge erred in refusing the instructions asked by the plaintiffs, which motion was denied by the court, and the counsel for the plaintiffs then and there duly excepted. Thereupon judgment upon said verdict in favor of the defendants and against the plaintiffs was rendered for the costs of the action, from which judgment and the whole thereof the plaintiffs bring this appeal.

J. V. Quarles and John T. Fish, for appellants, Edgar Pennoyer and others.

Quarles & Stebbins, James Cavanagh, and Jenkins, Elliott & Winkler, for respondents, Nathan R. Allen and others.

CASSODAY, J.

The order sustaining the demurrer to the equitable counterclaim was affirmed by this court in 50 Wis. 308, [S. C. 6 N. W. REP. 887,] for the reasons there given. A similar ruling was made in a similar action in favor of the same plaintiffs, and against these defendants and another, in 51 Wis. 360, [S. C. 8 N. W. REP. 268,] for the reasons there given. We do not think that the settlement of September 24, 1867, is a bar to this action, especially as the defendants have since that time, as shown by the undisputed evidence, and, in effect, found by the jury, made several enlargements to their tannery, and each in the direction of the water-cure in question. The court allowed evidence to be given upon the part of the defendants, against the objections of the plaintiffs, tending to show that the tannery was kept by the defendants more than ordinarily clean,--cleaner than an average of tanneries. As bearing upon that question, the court was requested to instruct the jury that “the fact that a business is a lawful one, and that it is conducted in the best possible manner, will not prevent it from being a nuisance.” This instruction was refused by the court, and the plaintiffs excepted. And then the court, against objections on the part of the plaintiffs, submitted to the jury, in effect, whether the defendants during the time in question operated their tannery, and the business connected therewith, in a reasonable and proper manner, and whether in such operation any odors, other than such as were incident to a tannery properly conducted, were sent over and upon the premises of the plaintiffs. The first of these questions was answered by the jury in the affirmative, and the second in the negative. These rulings can only be sustained upon the theory that a tannery doing the amount of business of the defendants, operated in a reasonable and proper manner, and sending forth no odors, except such as are incident to such a tannery properly conducted, cannot be a nuisance to the owner and occupant of adjacent premises used as a water-cure like the one in question. Is such the law?

In Walter v. Selfe, 4 De Gex & S. 315, a brick-kiln on premises adjacent to the plaintiffs was held to be a private nuisance, and in deciding the case the learned Vice-Chancellor KNIGHT BRUCE took occasion to say that he had no doubt, upon the facts and the law, that the plaintiffs, as owners and occupiers of the house, offices, and garden, were “entitled to an untainted and unpolluted stream of air for the necessary supply and reasonable use of himself and his family there; or, in other words, to have there, for the ordinary purposes of breath and life, an unpolluted and untainted atmosphere; * * * meaning by untainted and unpolluted, not necessarily air as fresh, free, and pure as at the time of building the plaintiffs' house, * * * but air not rendered to an important degree less compatible, or, at least, not rendered incompatible, with the physical comfort of human existence--a phrase to be understood, of course, with reference to the climate and habits of England.” That decision was affirmed on appeal by Lord ST. LAOUARDS, (Id. p. 326,) and subsequently approved in Pollock v. Lester, 11 Hare, 266, and followed in the exchequer chamber in Bamford v. Turnly, 3 Best & S. 62. In this last case the trial court “directed the jury * * *” to “find for the defendant,...