Metzger v. Hochrein

Decision Date21 June 1900
Citation83 N.W. 308,107 Wis. 267
PartiesMETZGER v. HOCHREIN.
CourtWisconsin Supreme Court

OPINION TEXT STARTS HERE

Appeal from circuit court, Sheboygan county; Michael Kirwan, Judge.

Injunction by Parmelia Metzger against H. H. Hochrein to abate an unsightly fence as a nuisance. From a judgment overruling a demurrer to plaintiff's complaint, defendant appeals. Reversed.

Action to restrain an alleged nuisance on facts set forth in the complaint in substance as follows: Plaintiff owns lots 5, 6, 7 and 8 of block 15, division 1, in the village of Glenbeulah, Wis., on which she has a dwelling house located about 4 feet from the west line, surrounded by made lawns and yards. making an attractive and valuable home. Defendant owns the adjoining lot on the west of plaintiff's land, in connection with other lots, on which he has a dwelling house, located about 50 feet from the division line. July 22, 1899, defendant set rough tamarack posts, from 8 to 16 feet high, along said division line, wholly on his own land, about 4 feet from the line of plaintiff's dwelling house, and extending back from the street front about 90 feet. He strung wires from the tops of such posts to his house, in order to hold the posts firmly in position, and on and supported by such posts he constructed a tight board fence of rough, old, unsightly and partly decayed lumber taken from an old ice house, such fence being from 8 to 16 feet high, the highest part being opposite the windows in plaintiff's house. Said structure is, by reason of its unsightly character and proximity to plaintiff's house, a nuisance. It was willfully and maliciously erected. It partially shuts off the view from plaintiff's house to the street and from the street to the house, greatly injures the value of the property for rent or sale, and if it be permitted to continue the use of such house as a dwelling place will have to be abandoned.

The defendant demurred to the complaint upon the ground that it fails to state facts sufficient to constitute a cause of action. The demurrer was overruled, and defendant appeals.M. C. Mead, for appellant.

A. C. Shaw, for respondent.

MARSHALL, J. (after stating the facts).

The question presented here is, may a person rightly use his own land as he sees fit, regardless of his motives, if that use render adjoining property less valuable and desirable for dwelling-house purposes, merely from diminished beauty of surroundings and access of light to the property, and opportunity to see it from the surrounding territory and to freely view such territory therefrom, there being nothing projected from the adjacent land causing any injury to such property or its occupants? It will be noted that it is not claimed the acts complained of caused any physical injury to plaintiff's property or to the occupants thereof. The sole complaint is that the beauty and cheerfulness of the property has been injured by defendant's conduct, and that the structure complained of was erected unreasonably and with malicious motives. So the case comes down plainly to the inquiry stated.

It is not an easy task to define with clearness what constitutes a nuisance, so that each case, as it arises, can be accurately tested thereby. Probably the language of Wood on Nuisances, at section 1, often quoted with approval by this court, comes as near strict accuracy as the nature of the subject will permit: “Every unlawful use by a person of his own property in such a way as to cause injury to the property rights of another, producing material annoyance, inconvenience, discomfort or hurt; and every enjoyment by one of his own property which violates the rights of another in an essential degree, constitutes an actionable nuisance.” In applying that to any given state of facts, it must be kept in mind that the injury referred to, whether to property or the...

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20 cases
  • Martin v. Williams, 10758
    • United States
    • West Virginia Supreme Court
    • 13 Marzo 1956
    ...or discomfort.' See also Higgins v. Decorah Produce Company, 214 Iowa 276, 242 N.W. 109, 81 A.L.R. 1199; Metzger v. Hochrein, 107 Wis. 267, 83 N.W. 308, 81 Am.St.Rep. 841, 50 L.R.A. 305; City of Janesville v. Carpenter, 77 Wis. 288, 46 N.W. 128, 20 Am.St.Rep. 123, 8 L.R.A. The unsightliness......
  • Prah v. Maretti
    • United States
    • Wisconsin Supreme Court
    • 2 Julio 1982
    ...property, that use is said to be a private nuisance. Hoene v. Milwaukee, 17 Wis.2d 209, 214, 116 N.W.2d 112 (1962); Metzger v. Hochrein, 107 Wis. 267, 269, 83 N.W. 308 (1900). See also Prosser, Law of Torts sec. 89, p. 591 (2d ed. The private nuisance doctrine has traditionally been employe......
  • Johnson v. Ætna Life Ins. Co.
    • United States
    • Wisconsin Supreme Court
    • 6 Mayo 1914
    ...that which is lawful. This question is definitely set at rest by a number of decisions in this court. Metzger v. Hochrein, 107 Wis. 267, 83 N. W. 308, 50 L. R. A. 305, 81 Am. St. Rep. 841;Sullivan v. Collins, 107 Wis. 291, 299, 83 N. W. 310;Marshfield L. & L. Co. v. John Week L. Co., 108 Wi......
  • White v. Bernhart
    • United States
    • Idaho Supreme Court
    • 25 Noviembre 1925
    ... ... v. McIlquam, 14 Wyo. 209, 83 P. 364, 3 L. R. A., N. S., ... 733, Falloon v. Schilling, 29 Kan. 292, 44 Am. Rep ... 642; Metger v. Hochrein, 107 Wis. 267, 81 Am. St ... 841, 83 N.W. 308, 50 L. R. A. 305; Jones v ... Williams, 56 Wash. 588, 106 P. 166; Bordeaux v. Greene, ... 22 Mont ... ...
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1 books & journal articles
  • Some Preliminary Thoughts on the Law of Neighbors
    • United States
    • University of Georgia School of Law Georgia Journal of International & Comparative Law No. 39-3, 2011
    • Invalid date
    ...2009)). Earlier common law decisions had refused to grant relief for fences allegedly built in spite. See, e.g., Metzger v. Hochrein, 83 N.W. 308 Wis. (1900) (rejecting a claim based on an alleged spite fence; overruled legislatively by Wis. Stat. § 844.10 (2007)). For extensive discussion ......

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