Meiners v. Frederick Miller Brewing Co.

• Decision Date: 16 December 1890
• Citation: 78 Wis. 364,47 N.W. 430
• Parties: MEINERS v. FREDERICK MILLER BREWING CO.
• Court: Wisconsin Supreme Court

78 Wis. 364

47 N.W. 430

MEINERS

v.FREDERICK MILLER BREWING CO.

Supreme Court of Wisconsin.

Dec. 16, 1890.

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

Action in equity for the abatement of an alleged nuisance. The complaint charges that the defendant owns and maintains a brewery on lands contiguous to the lands and residence of plaintiff, and so operates such brewery as to foul the water in certain streams running along and through plaintiff's premises, and cause the entire neighborhood, and a certain highway therein, and the atmosphere over and around the same, to be tainted and polluted with noxious gases and smells, which annoy and disturb the comfort, and endanger the health, of all persons residing in such neighborhood. It also charges that the plaintiff is specially and peculiarly injured and damaged by such wrongful acts and omissions of the defendant and the continuance by it of the alleged nuisance, and specifies the particulars of such injury,--one of which is the depreciation of the value of plaintiff's property by reason thereof. In a second count or cause of action it is charged that the same nuisance fouls the air in and around plaintiff's residence, thereby disturbing the comfort of himself and family, and endangering their health. The defendant failed to answer the complaint within the time allowed by law. It thereupon applied to the court to be allowed to answer, and, in addition to affidavits to excuse its default, tendered a verified answer. With certain exceptions, not necessary to be stated, this proposed answer was substantially a general denial. It also contains the further defense to the alleged cause of action, stated in the first count of the complaint, that defendant had continuously occupied and used its premises and brewery in the same manner for more than 20 years. The court granted the motion on the terms that the defendant expunge from its proposed answer the defense of prescription, and pay the plaintiff $25. From that portion of the order granting such motion, which imposes the above terms, the defendant appeals.Nath. Pereles & Sons and Miller, Noyes & Miller, for appellant.

Charles A. Koeffler, Jr., for respondent.

LYON, J., ( after stating the facts as above.)

This is essentially an action in equity to procure the abatement of a public or common nuisance, for there can be no doubt the effect of the defendant's acts and omissions charged in the complaint is to create and...