Tiede v. Schneidt

• Decision Date: 12 April 1898
• Citation: 99 Wis. 201,74 N.W. 798
• Parties: TIEDE v. SCHNEIDT ET AL.
• Court: Wisconsin Supreme Court

99 Wis. 201

74 N.W. 798

TIEDE

v.SCHNEIDT ET AL.

Supreme Court of Wisconsin.

April 12, 1898.

Appeal from circuit court, Milwaukee county; D. H. Johnson, Judge.

Action by Frederick Tiede against August L. Schneidt and another for damages, and to restrain an alleged nuisance. From an order vacating a temporary injunction, plaintiff appeals. Affirmed.

Action against the defendants for maintaining an establishment and manufactory alleged to be a nuisance, in which dead animals and the carcasses and offal therefrom were collected and converted into marketable products, located on the banks of the Menomonee river, in the town of Wauwatosa, upon a lot of land described in the complaint, containing about eight acres, of which the plaintiff claimed that he had been at all times in possession for the past three years, and was the owner thereof, known as lot 11 in block 1, and upon which his dwelling house is located, wherein he resides and has resided during said period. It is charged that since August 26, 1897, the defendants had maintained, and were still maintaining, said establishment upon the banks of the Menomonee river, and from that time until the present had continually and daily caused cattle, horses, and other animals to be brought upon said premises, and there killed, and other animals already dead to be brought there, and had daily and continually converted the same in said manufactory into marketable products, and had caused the blood and offal from said animals to be thrown and deposited into the waters of the Menomonee river, which flows past and across the premises aforesaid, opposite to and in the neighborhood of the premises of the plaintiff; that, by reason of the establishment and maintenance of the said manufactory, the same had become a nuisance to the public and all persons residing in the neighborhood or traveling upon the public streets, and that the plaintiff had during said period, and was still, suffering private and special injury therefrom, peculiar to himself, in the impregnation of the air upon and in the neighborhood of his said premises, caused and coming from the putrid substances of the said dead animals, etc., so collected and converted by defendants in said establishment and manufactory, whereby the occupation of his property had been rendered disagreeable, unwholesome, and offensive; that odors from said manufactory, and from the causes aforesaid, kept the air upon the plaintiff's premises constantly impregnated with foul and unhealthy vapors and smells, so that his said property has become impaired and unfit for use and occupancy, to his great and irreparable damage; that the blood and offal from said dead animals were continually deposited through an open sewer from said manufactory into the waters of the said river, which were thereby polluted and rendered unwholesome and unfit for use, either for watering stock or for any domestic purpose; that said injury was continuous and constantly recurring; and that he was without remedy at law in the premises, in that it was not susceptible of adequate compensation in damages. Said river is a running stream, flowing through the city of Wauwatosa and the city of Milwaukee, in said county, and also through the town of Wauwatosa, in said county, which is an organized town, containing more than 200 inhabitants, constituting a part of the county of Milwaukee, and which county contains a population of over 100,000 people. Plaintiff prayed that said manufactory of the defendants be adjudged to be a private nuisance to the plaintiff, and that he might recover from the defendants the damages which he had sustained by reason of the maintenance thereof, and that the court adjudge and direct that the said nuisance be abated and removed as provided by law, and in the meantime, and until the final hearing, a temporary injunction might be granted restraining the defendants, their agents, servants, etc., from maintaining said or any establishment or manufactory in which dead animals, or the carcasses and offal therefrom, are collected and converted by them, or either of them, into marketable products or otherwise, and from depositing any such carcasses or parts thereof or blood therefrom in the Menomonee river, whether the same consists of carcasses, offal, or blood of cattle, horses, sheep, or other animals, and such further and other relief, etc. Upon the verified complaint of the plaintiff, a temporary injunction, in substance as above, was granted until the further order of the court in the premises.

The defendant Schneidt answered, admitting the ownership of the eight acres of land mentioned in the complaint, and alleged that he had maintained and operated for more than 21 years before the commencement of the action an establishment and manufactory for the purpose of and in which hair is and had at all said times been treated and manufactured substantially in the way and with substantially the same results upon the atmosphere as had been the case from the 26th of August, 1897, and claimed the right so to do peaceably, continuously, and without interruption or opposition; that during said time he had maintained and operated an establishment for the purpose of rendering dead animals, and converting their substance into a merchantable product, in the same way and with the same results upon the atmosphere as had been the case since the 26th of August, 1897; and during said 21 years he had on an average rendered daily one or more dead horses and other dead animals, and for that purpose he had carefully devised and caused to be constructed and put in place in his factory, on said premises, an apparatus for reducing such carcasses in a sanitary and inoffensive manner, and otherwise made and constructed the necessary equipments for so carrying on said business; that, shortly prior to said 26th of August, the defendant the city of Milwaukee desired to contract with him for the disposal of dead animals to be found in the streets and other places in the city, and theretofore the carcasses of such animals had been rendered and disposed of by a corporation known as the Wisconsin Rendering Company, under a contract with the city, which expired during the summer of 1897; that it was absolutely necessary for the public health that said carcasses be promptly removed and disposed of, and thereupon the said city of Milwaukee and the defendant Schneidt made a contract whereby they were to be taken to his establishment, and he was to render and dispose of the same in a sanitary manner; and thenceforward, from the 26th day of August, 1897, he received from the defendant the city of Milwaukee said carcasses, and disposed of them by means of the appliances and apparatus theretofore used by him, and in the same manner, so that all the organic matter from said carcasses was reduced to substances absolutely innoxious and inoffensive; that at all the time the work of reducing the same had been, and was at the time of the service of the injunction, carried on in steam-tight metal tanks, by means of live steam, and under steam pressure; and that no gas or effluvium then did or could escape from said carcasses or tanks during or after the said process of reduction; and, save as above stated, there had been no collection or conversion or rendering or reducing of any carcasses or parts thereof upon the said premises since August 1, 1897. The defendant Schneidt also denied that he had at any time since August 1, 1897, killed or caused to be killed any cattle, horses, etc., or that he had maintained or maintains any slaughter house upon said premises, but alleged that during said time no cattle, horses, sheep, or other animals whatever had been killed upon said premises, save and except two horses, which were killed by the officers of the health department of the city of Milwaukee, by being shot to death; and denied that the said manufactory had become or was a nuisance either to the public or any person residing on or being in its neighborhood, or that any offensive odor or noxious gas or effluvium had ever passed from his said premises into or upon the premises occupied by the plaintiff, or that any blood or offal whatever from dead animals or from said establishment had been deposited through a sewer or in any other way into the waters of the said river, or that the same were...