McCann v. Strang

• Decision Date: 16 November 1897
• Citation: 72 N.W. 1117,97 Wis. 551
• Parties: MCCANN ET AL. v. STRANG.
• Court: Wisconsin Supreme Court

97 Wis. 551

72 N.W. 1117

MCCANN ET AL.

v.STRANG.

Supreme Court of Wisconsin.

Nov. 16, 1897.

Appeal from circuit court, Richland county; O. B. Wyman, Judge.

Action by Isaac McCann and another against George H. Strang to enjoin the operation of an electric light plant. From a judgment in favor of defendant, plaintiffs appeal. Affirmed.

Action to enjoin the operation of an electric light plant upon the ground that it constituted a nuisance in that it was located so near lands owned and occupied by plaintiffs as a home, and was operated in such a way as to create so much noise from the motions of the machinery, and so much smoke from the burning of large quantities of soft coal to generate steam power, and so filled the air with noxious vapors, cinders and soot, as to render such home, which was situated immediately across the street from such plant, unhealthful and practically uninhabitable, with any comfort. The location and operation of the electric light plant, and the ownership of property by plaintiffs, as alleged in the complaint, were admitted. The disputed questions related wholly to whether the plant was so operated as to constitute a nuisance. On that subject the trial resulted in a finding, in substance, that plaintiffs' building upon the land described in the complaint was a wooden frame structure, used in part for a meat market and in part for a dwelling house for plaintiffs; that the electric plant was located in the manufacturing part of the city; that it was operated till 11 o'clock every night; that during such operation it made a buzzing noise that could be distinctly heard at plaintiffs' building, but that it did not constitute a source of injury to the health of, or any damage or inconvenience to, the plaintiffs by reason of smoke, sparks, soot, or cinders; that the noise produced was not of such a character as to constitute a nuisance, and that the plant was not a nuisance and should not be abated; that it was of no material injury to plaintiffs. Numerous exceptions to these findings of fact were filed by the plaintiffs. They appealed from the judgment rendered on the findings in defendant's favor.Burton, Hanson, Miner & Miner and F. W. Burnham, for appellants.

H. A. Eastland and L. H. Bancroft, for respondent.

MARSHALL, J. (after stating the facts).

It is well settled that a lawful trade may, by reason of its being carried on at unusual hours or in close proximity to a dwelling house, by reason of noise and other incidents of it, constitute a nuisance and be subject to be abated as such by a court of equity at the suit of the owner of such dwelling house. The real test, it is said, whether a noisy trade...