Stadler v. Grieben

• Court: Wisconsin Supreme Court
• Writing for the Court: CASSODAY
• Citation: Stadler v. Grieben, 61 Wis. 500, 21 N.W. 629 (Wis. 1884)
• Decision Date: 25 November 1884
• Parties: STADLER v. GRIEBEN.

61 Wis. 500

21 N.W. 629

STADLER

v.GRIEBEN.

Supreme Court of Wisconsin.

Filed November 25, 1884.

Appeal from circuit court, Milwaukee county.

This action was commenced August 24, 1882. It is alleged in the complaint, in effect, that at the time of the commencement of this action, the plaintiff was, and for more than four years then last past had been, the owner in fee, and by himself and his tenants in possession, of lots 2, 3, and 6 in block 36, in the Sixth ward of Milwaukee, with nine substantial two-story buildings thereon, used and occupied by himself and tenants for stores and dwelling-houses, three of which buildings fronted on Vliet street and six fronted on Fifth street and the public square opposite; that during said time the defendant had kept and maintained a stock-yard on the north-west corner of said streets, and near to and only diagonally across said streets from the plaintiff's said premises, and during said time had kept and caused to be kept in said stock-yards, cattle, calves, sheep, and hogs, for market and otherwise, and in such a manner as to be a special injury and nuisance to the plaintiff's said premises, and to himself and his tenants occupying the same, thereby greatly lessening and reducing the rental value of the buildings, and lots to the damage of the plaintiff in the sum of $5,000; wherefore the plaintiff prayed judgment that the defendant be enjoined from continuing the nuisance, and that the same be entirely prohibited and removed, and that the plaintiff have judgment for $5,000 damages, with the costs of the action. The answer admitted the ownership and occupancy of the premises of the plaintiff and defendant substantially as alleged and then denied each and every other allegation of the complaint. The jury viewed the premises as a part of the trial. On the trial the court submitted to the jury a special verdict, and they answered the several questions submitted to the effect (1) that the defendant had frequently, within the past four years and during four years prior to August 23, 1882, maintained and kept sheds, yards, and pens on his said premises, and at such place had kept, and allowed to be kept, cattle, calves, sheep, and hogs for market; (2) but that the keeping of said animals created no offensive noxious smells which tainted the atmosphere so as to thereby cause such a degree of annoyance and discomfort to the inmates of the plaintiff's premises that their comfortable enjoyment and use of them was materially interfered with and impaired; (3) that the keeping of said animals at such times created no such loud, offensive, and disturbing noises as to render the enjoyment and use of plaintiff's premises uncomfortable, or so as to materially interfere with and impair their use; (4) that the rental value of plaintiff's premises or any part of them, during said four years, had not been materially affected by said odors and noises, or either, proceeding from defendant's cattle-yard; (5) that they found for the defendant. From the judgment entered thereon the plaintiff brings this appeal.Goodwin & Miller, for appellant.

Jenkins, Winkler & Smith, for respondent.

CASSODAY, J.

1. Undoubtedly, “either party may, at any time before the close of the term at which the action is tried, except to any part of the judge's charge to the jury, not given with his express consent, with the same effect as if done at the trial before the jury retired.” Section 2869, Rev. St. But to make such exceptions available the bill of exceptions as settled must contain a statement of the exceptions so taken. Section 2873, Rev. St. Here the proposed bill of exceptions contained a statement of exceptions to portions of the charge, but the defendant, by way of amendment, moved to strike them out, which was done in accordance with a written stipulation on the part of the plaintiff, so that the bill of exceptions, as settled, contains no statement of any exception to any portion of the charge. A party is not entitled to the benefit of every exception to the charge which he may file in the cause. He is not entitled to an exception to a portion of a charge given by his express consent. The statute only authorizes such exceptions as are taken before the close of the term at which the action was tried. We must presume that the exceptions here filed were excluded from the bill of exceptions because they were unauthorized. Certainly they cannot be treated as a part of the record, and hence are not before us for consideration. We are confined to matters of record.

2. Counsel for the plaintiff objected to the word “material” as used in the second, third, and fourth questions submitted to the jury; but it is well settled that the law gives protection only against substantial injury. To be of legal cognizance, the injury must be tangible, or the discomfort perceptible to the senses of ordinary people. No party is liable to another as and for a nuisance simply because he keeps a stock-yard, if it is kept in such a place and in such a manner as not to contaminate the atmosphere to such an extent as to substantially interfere with the comfort or enjoyment of others, nor impair the use of their property. In other words, the comfort, enjoyment, or use must be materially affected or impaired. Pennoyer v. Allen, 56 Wis. 511; S. C. 14 N. W. REP. 609. The same view is supported by several cases not there cited. Sturges v. Bridgman, 32 Moak, Eng. Rep. 837; Baltimore & P. R. Co. v. Fifth Baptist Church, 108 U. S. 317;S. C. 2 Sup. Ct. Rep. 719;Appeal of Pa. L. Co. 96 Pa. St. 116; Fish v. Dodge, 47 Amer. Dec. 254.

3. It is urged that the case should be treated as a bill in equity, and hence that the findings of the jury are not binding, as they would be in an action at law. If that were so, the special verdict would stand as the findings of fact by the court, and hence, to authorize a review of the evidence, exceptions should have been taken to such findings, and then such exceptions should have been incorporated into the bill of exceptions. These things were not done, and we would, therefore, be precluded from reviewing the evidence, even upon the theory of counsel. Sections 2870, 3070, Rev. St.; Evenson v. Bates, 58 Wis. 24;S. C. 15 N. W. REP. 837;Cramer v. Hanaford, 53 Wis. 85;S. C. 10 N. W. REP. 15.

4. But the learned counsel concedes that the action was brought under sections 3180 and 3181, Rev. St. Such action, by a private person, to recover damages for and to abate the nuisance is necessarily an action at law. In so far as these sections authorized judgment of abatement in such action...