Gifford v. Hulett

• Decision Date: 21 February 1890
• Citation: 62 Vt. 342,19 A. 230
• Parties: GIFFORD et ux. v. HULETT et ux.
• Court: Vermont Supreme Court

19 A. 230

62 Vt. 342

GIFFORD et ux.

v. HULETT et ux.

Supreme Court of Vermont. Bennington.

Feb. 21, 1890.

Appeal from Bennington county court.

This was a bill in chancery, praying for an injunction to restrain the defendants from maintaining and using their barn, upon the ground that the same was a nuisance to the petitioners. The case was heard upon bill, answer, master's report, and exceptions thereto, at the December term, 1889. TYLER, chancellor, sustained the exceptions of the defendants, and dismissed the bill. The orators appeal. The defendants excepted for that the master, on the trial before him, received evidence of the use and condition of the barn subsequent to the service of the orators' bill, and that the evidence of the orators did not show an existing nuisance at the date of such service. The bill was served April 24, 1888. The orators were husband and wife; the wife being the owner of the house which they occupied. The defendants were also husband and wife; the wife owning, and the husband using, the barn in question, which was a horse-barn, and situated about 30 feet from the dwelling of the orators.

With reference to the use of the barn, and its effects upon the orators, the master reported as follows: "The defendant Ezra is a fish peddler, and makes trips to different points, often returning late at night. He had, during the winter of 1887-88, two horses, and a part of the time three. He commenced keeping his horses in this barn about the middle of November; and they were kept there, when not in use, until spring. No other stock was kept in the barn. During the first few weeks the manure was thrown from both stable doors, and what was thrown from the north door was used in banking the barn. After this, it was all thrown from the south door, and remained where it was thrown until spring. The pile so made was at the south east corner of the barn, close to the division line between the parties. A. portion of the accumulation was removed early in April. On the 24th day of that month, the day the bill was served, the pile contained about two two-horse wagon loads. The last of the pile was removed on the 9th and 10th days of May. During the summer the defendant Ezra had two horses, but one was kept in the pasture a part of the time. In the summer the manure was generally taken by wheelbarrow, and put in a heap some distance back in the lot. It was sometimes taken directly from the stable, but was at other times suffered to remain at the stable door two or three days. On one occasion, in the summer or early fall, it was left there until there was an accumulation of a one-horse wagon load. Later in the fall there was another accumulation, somewhat larger, which was there on the 10th day of October, when the defendants were served with notice in proceedings for contempt. During the past winter the defendant Ezra has kept but one horse. The management of the manure was substantially the same as during the previous winter. At the time of the hearing there was no manure at the barn; but it was still used as a horse-barn, and was in the same location as when the bill was brought. The horses of the defendant Ezra were fed upon hay and grain. Shavings were used for bedding. The manure was occasionally left in the barn until the second day. There was nothing in the character or management of the accumulations outside the barn to make them more offensive than such accumulations usually are. The winter of 1887-88 was a steady, cold one, with frequent falls of snow. I do not see how the manure can have produced any specially disagreeable results before the first warm days of spring. As the weather became warm, and previous to the 'date of the bill, the heap became unpleasant. The prevailing wind at this point is from the west or southwest. With the wind in this direction, the odor was noticeable at the house...