Wergin v. Voss

• Decision Date: 06 February 1923
• Citation: 192 N.W. 51,179 Wis. 603
• Parties: WERGIN ET AL. v. VOSS.
• Court: Wisconsin Supreme Court

179 Wis. 603

192 N.W. 51

WERGIN ET AL.

v.VOSS.

Supreme Court of Wisconsin.

Feb. 6, 1923.

Appeal from Municipal Court, Langlade County; Arthur Goodrick, Judge.

Suit by Adolph Wergin and others against F. K. Voss, to restrain defendant from erecting a veterinary hospital. From an order refusing injunction, plaintiffs appeal. Affirmed.

This is a suit in equity to restrain the defendant from erecting a proposed veterinary hospital on certain lots owned by him in the northeast corner of block 21 in the city of Antigo. The proposed construction may best be described in the following language of the trial judge:

“The plans and drawings of the building have been offered in evidence, from which it appears that the building will be 36x60, with cement floors, walls built of tile, with two air spaces, the front of artistic design, with glass doors; the building will be neat and attractive in appearance. Inside the defendant will have his veterinary office in the southeast corner. Immediately back of that there will be a room for his drugs and medicines. Back of that will be a room for operating upon horses, and back of that two box stalls. Through the center of the building will be a tight partition, separating the east from the west side. On the west side are located six ordinary stalls for horses. In the front or southwest will be a large room used as a garage for the doctor's automobile in the summer and hitching up room for his horses in the winter. On the west side of the building about one-third the way from the north end will be a tight room for the purpose of storing manure with an outside door for emptying the bin and hauling it away. The building will have cement floors and gutter connections with the city sewer with traps and arranged that the stalls and floors and gutter will be washed with hose and water and kept clean and sanitary. A modern system of ventilation will be installed, taking in fresh air near the ceiling of the rooms on the main floor and carrying off the bad air from the floor through the ceiling to the top of the building. The floors will be painted with cement paint to facilitate the washing and prevent the cement absorbing the secretions of the animals. The building will be set back on the defendant's lot something like 26 or 28 feet from the sidewalk, so that the front of the building will not obstruct the view of the building line of other buildings to the east. It is proposed to erect it within 3 or 4 feet of Mrs. Talaraczyk's property east and within a few feet on the north of the rear end of James Chadek's place. The rear of defendant's residence will be about 20 feet from the building on the west. These plans have been submitted to the State Industrial Commission and have been approved, with suggestions, and have also been approved by the state board of health and the city health officer of the city of Antigo. The nearest residence to this proposed building will be Mrs. Talaraczyk's, immediately east, which will be some 14 or 15 feet away. The defendant's house then comes next, being 20 feet, and plaintiff Chadek 40 feet.

It further appears: That this building is being erected by the defendant for the purpose of his personal convenience in his business as a veterinary surgeon, giving him an office and medicine room, one room for the purpose of a garage in the summer and a hitching-up room in the winter, where he can hitch up his teams inside, and for the purpose, also, of accommodating his driving horses, which he needs in the winter when he is unable to drive his automobile. That he has four driving horses and two or three colts. That he will probably maintain during the winter five driving horses in this barn. That there will be very few horses in the barn during the summer season. That he has included in the building an operating room and two box stalls, to give him a place where he can handle and treat cases which might be difficult to handle and treat at their home barns. It appears that 90 per cent. of the defendant's business in the treatment of animals or horses is done at the home barn of the animal; that the horses are seldom brought to the veterinary's barn or place of business, but they are occasionally.”

The court found as a fact:

“That said location, where the proposed building is to be erected, is not in a strictly residential district.”“I further find that the premises in question, upon which the proposed building is to be erected, are close to the business section, and are not in a location where the residential character of the district is exclusive, but in a location where the said residential character is giving way, and business is breaking in, and that this location is on the border line between the business and residential section of this district.”

Also:

“I find, and am constrained to so hold, as facts, that this building, proposed to be erected in the manner described, will not be a private nuisance, and that no offensive odors will emanate therefrom, which will be detrimental to or injure the health or comfort of any resident, if properly kept, and that the erection of said building, as designed, will not ipso facto depreciate the value of the property in that immediate vicinity.”

From a judgment in favor of the defendant, plaintiffs bring this appeal.Whiting & Dempsey, of Antigo, for appellants.

Morson & Reinert, of Antigo, for respondent.

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

[1] The proposed building, the erection of which is sought to be restrained, is to be used by the defendant as a veterinary hospital. So far as its alleged objectionable features are concerned, it is comparable to, and certainly does not more nearly approximate a nuisance than does, a livery stable. It seems to be pretty well settled that a livery stable is not a nuisance per se. 20 R. C. L. p. 414; 29 Cyc. p. 1176; Wood on Nuisances (3d Ed.) § 594; Rounsaville v. Kohlheim, 68 Ga. 668, 45 Am. Rep. 505;Kirkman v. Handy, 11 Humph. (30 Tenn.) 406, 54 Am. Dec. 45;Albany Christian Church v. Wilborn, 112 Ky. 507, 66 S. W. 285. As was said in Kirkman v. Handy, supra:

“We have...