Lead v. Inch
| Decision Date | 19 January 1912 |
| Docket Number | 17,314 - (44) |
| Citation | 134 N.W. 218,116 Minn. 467 |
| Parties | OLE LEAD v. HERBERT INCH and Another; ERNEST A. SCHULZE v. SAME; HENRY GAZETT v. SAME |
| Court | Minnesota Supreme Court |
Three actions in the district court for St. Louis county; the Lead and Schulze actions to recover $2,000 damages each, and the Gazett action to restrain defendants from using and maintaining the barn in question for the stabling of horses from allowing the barn to give off a stench, and to enjoin the use of indecent and obscene language by the men employed at the barn, and to recover $2,000 damages.
Defendant Inch answered separately in each case, and alleged that the barn had been in constant use as a horse barn for at least fifteen years; that at all times since defendant had occupied it, it had been kept in a clean and sanitary condition, free from noise or offensive odors; that the locality in which the barn was situated was not given over to residences, the alley on which it was placed having a number of other barns and structures not used for residence purposes, and that the barn was one of the most substantial improvements upon the alley that it was a thoroughly first class, modern, up to date barn; that since plaintiff occupied his premises, defendant without objection from plaintiff and with plaintiff's knowledge, made large expenditures in improving and remodelling the barn, by reason of which facts plaintiff was estopped to complain of the location and use of the barn, so long as the same was used and occupied in a proper manner. The replies were general denials.
The cases were tried together before Ensign, J., and a jury which returned a verdict of $150 in the Lead case and in the Schulze case, and in the Gazett case answered a special question as to the amount of damages recoverable by assessing them at one dollar. The court made findings of fact and conclusions of law in the Gazett case, and ordered judgment in favor of plaintiff for one dollar and a permanent injunction in the form mentioned in subdivision 4 of the opinion. Defendant's motion to amend the findings was denied, but the court added to its conclusions of law the words: "Provided the conditions from which are caused the said offensive odors and noises, and the maintenance of which are to be enjoined by such injunction, are such noises and odors as are and will be offensive to persons of ordinary sensibilities." From orders denying new trials in each case, defendant appealed. Affirmed.
Nuisance -- verdict and findings supported by evidence.
It is held that the evidence in these several actions, which were tried together in the court below, is sufficient to support the verdict of the jury and the findings of the trial court, and that the record presents no reversible error.
Barn -- when a nuisance.
A barn, located in a thickly settled part of a city, in which a large number of horses are stabled, though not per se a nuisance, may become such by reason of the manner in which the same is managed and conducted.
Barn -- injunction.
If the owner thereof so manages the same that noxious and offensive odors escape therefrom, to the detriment, annoyance, and discomfort of adjoining property owners, it is a nuisance, and may be restrained in equity.
Barn
Where such a nuisance is continuing in character, equity will interfere to protect offended third persons, although the owner thereof be solvent and able to respond in damages.
Barn -- irreparable injury.
In the case of a nuisance like that involved in this action, and where the damage to adjoining property owners cannot well be measured from a pecuniary 2standpoint, the injury is irreparable, within the meaning of the law, and equity will interpose, though the pecuniary damage be not shown to be great.
Washburn, Bailey & Mitchell, for appellant.
Fryberger & Fulton, for respondents.
These actions were brought to recover damages alleged to have been suffered by plaintiffs in consequence of a nuisance maintained by defendant upon premises adjacent to those occupied and owned by them. They were consolidated on the call of the calendar in the court below and tried together; the Lead and Schulze actions being submitted to a jury, and the Gazett action to the court, save as to the question of damages.
In the two actions submitted wholly to the jury, verdicts were returned for the respective plaintiffs; in the Gazett action a verdict assessing plaintiff's damages at the sum of one dollar was returned, and the court therein made findings of fact and conclusions of law, awarding judgment therefor, and directing the issuance of a permanent injunction restraining the further maintenance of the nuisance. The action was dismissed as to defendant Anker. Defendant Inch moved for additional and amended findings in the Gazett case, which was denied in part and granted in part. Defendant thereafter moved for a new trial of all the actions on various grounds, and appealed from an order denying the same.
It is contended on this appeal (1) that the evidence does not justify the verdict of the jury or the findings of the court; (2) that the court erred in certain of its instructions and refusals to instruct the jury; (3) that incompetent evidence was erroneously admitted; and (4) that a permanent injunction in the Gazett case was improperly granted.
The facts as disclosed by the evidence and findings of the court are substantially as follows:
Defendant is a teamster, employing in the conduct of his business a number of horses, which he stables in a barn owned by him and located upon the land described in the complaint in the city of Duluth. The barn was originally built fifteen or more years ago and of sufficient capacity to stable a limited number of horses. For several years prior to the time defendant became the owner of the barn, it was not in use to any considerable extent, if at all, and had been practically abandoned as a stabling place for horses. During this period a large number of people, including plaintiffs, purchased lots in the vicinity of the barn and erected thereon dwelling houses, and the locality became a thickly settled residence part of the city of Duluth.
Thereafter, and about five years prior to the commencement of these actions, defendant purchased the property and commenced stabling the horses used by him in his business as teamster, and so continued until some three years before the commencement of the actions, when he rebuilt and reconstructed the barn and so enlarged its capacity as to accommodate about thirty horses. About the same time defendant extended his business, and in addition to horses used in his team work constantly kept a number in the barn for sale. By these improvements in the barn it was made into a two-story structure, with room on one floor for thirteen and upon the other seventeen horses.
Thereafter the court found that defendant allowed the barn to be used and kept in such a manner that there emanated therefrom noxious and offensive odors, varying in intensity and offensiveness from time to time, and to such an extent as to cause the atmosphere, especially in the summer time, to become polluted, which reached the houses and dwellings of plaintiffs, to their annoyance and discomfort; that during said time the horses so stabled, during both the night and day time, stamped,...
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