Monk v. Packard

• Decision Date: 04 August 1880
• Citation: Monk v. Packard, 71 Me. 309 (Me. 1880)
• Parties: ADDISON MONK v. WILLIAM PACKARD and others.
• Court: Maine Supreme Court

71 Me. 309

ADDISON MONK v. WILLIAM PACKARD and others.

Supreme Judicial Court of Maine.

August 4, 1880

ON MOTION.

The facts appear in the opinion.

O H. Hersey and Enoch Foster, for the plaintiff.

In the defendants' burial ground the nearest grave is two rods and nine links from the plaintiff's sitting room window.The close proximity of the cemetery renders the enjoyment of the plaintiff's dwelling house and well of water offensive and uncomfortable, constantly exciting apprehensions of disease; and it greatly injures the value and sale of plaintiff's property.

Nuisance is " anything which worketh hurt, inconvenience or damage."3 Blackstone 213.

That which is offensive to the senses and renders the enjoyment of life or property uncomfortable is a nuisance.Begein v Anderson,28 Ind. 79;Catlin v. Valentine,9 Paige 575;Brady v. Weeks,3 Barb. 157;Barnes v. Hathorn,54 Me. 124.

Upon the question of disturbing the verdict counsel cited Googins v. Gilmore,47 Me. 9;Williams v Buker,49 Me. 427;Peabody v. Hewett,52 Me. 33;Farnum v. Virgin,52 Me. 576;Gleason v. Bremen,50 Me. 222;Drown v. Smith,52 Me. 141;Stone v. Augusta,46 Me. 127;Darby v. Hayford,56 Me. 246;Gould v. White,26 N.H. 189.

Black & Holt, for the defendants.

VIRGIN, J.

This is an action on the case for an alleged nuisance, consisting of a private burying ground, containing seven or eight graves, situated near the plaintiff's dwelling house.

Prior to 1850, the father of two of the defendants, and of the wives of the other defendants, owned about fourteen acres of land on the east side of the county road, in a sparsely settled part of Hebron.The northeast (back) corner of the lot, bounded on the east by the high bank of a brook, was appropriated for a private burial place, in which, at various times from fifteen to forty years ago, some nine or ten bodies had been buried in a somewhat promiscuous manner.It was never inclosed, and it had no definite boundaries; but it was separated from the remaining portion of the lot, by a board fence extending from the road easterly near the graves to the brook, leaving about an acre north, and the remainder south of the fence.

In 1850, one of the defendants came into possession of the larger parcel, erected thereon a small house, the front of which was about thirty-three feet from the road, with the north end about the same distance from the board fence; and in the rear of the house, but quite near to it, a small stable with its north end flush with the fence.

In 1868, the plaintiff purchased the larger parcel of land with the buildings thereon, dug a well some thirteen feet in depth, and about seventy feet from the fence, between the house and the road, and has occupied the premises most of the time since.

In 1875, the defendants fenced off the southwest (front) corner of the small lot, inclosing a parcel thereof, thirty-three feet on the road, and extending back nearly to the northeast (back) corner of the stable for a new burying ground; and into this they removed the remains of all the old graves except two, one of which being included within the new inclosure, and the other not removable on account of water in the grave.One of the reasons for removing the graves was the caving off of the bank of the brook as it was worn away by spring and fall freshets, which had nearly reached the graves nearest the bank.The old board fence was removed, and a double wall, faced on the side next the plaintiff's premises, was substituted; the new cemetery was tastefully graded and suitable headstones erected at the several graves, the nearest being about forty feet from, and opposite to the window of the plaintiff's sitting room, and also in plain view from his front windows and door.As first located, the graves were only visible from the back rooms of his house.

The plaintiff claimed this new grave yard to be a nuisance, for the reason that its proximity and relative position render his residence uncomfortable and the enjoyment of his property disagreeable; and that it has rendered the water in his well unpalatable and unwholesome, and has lessened the market value of his property.

The jury, under instructions not excepted to, returned a verdict for the plaintiff and assessed damages in the sum of twenty-five dollars; which the defendants ask us to set aside as being against law and the weight of evidence.

There is no pretense that the plaintiff's physical...