Wilcox v. Henry

• Decision Date: 21 September 1904
• Citation: 77 P. 1055,35 Wash. 591
• Parties: WILCOX v. HENRY.
• Court: Washington Supreme Court

77 P. 1055

35 Wash. 591

WILCOX v. HENRY.

Supreme Court of Washington

September 21, 1904

Appeal from Superior Court, King County; Boyd J. Tallman, Judge.

Action by Charles R. Wilcox against James Henry. From a decree in favor of plaintiff defendant appeals. Affirmed.

James B. Murphy, for appellant.

R. E. Ferree, J. L. Waller, and R. W. Emmons, for respondent.

MOUNT J.

Respondent brought this action to restrain appellant from maintaining a nuisance. The nuisance complained of consisted of a slaughterhouse, rendering tanks, and stockpens, located in the city of Seattle, about a quarter of a mile distant from respondent's residence. On the trial of the case the court made findings of fact in substance as follows: That respondent is the owner of certain lots, and a dwelling house thereon, located on what is commonly known as 'Beacon Hill,' in the city of Seattle; that appellant is in possession of certain tide-land lots of Elliott Bay, lying immediately west of Beacon Hill, at the foot thereof, and about 1,500 feet in a southerly direction from respondent's dwelling; that appellant, at the time the action was begun, and for a long time before, was, and is now, operating and maintaining upon said tide-land lots a slaughterhouse, stockpens, furnaces, vats, and other appliances for the manufacture of lard and tallow, and for slaughtering large numbers of cattle, hogs, and sheep; that the said slaughterhouse and stockpens are kept in an unclean and filthy condition, and the appellant suffers and allows the offal, filth, and animal refuse matter to be collected, deposited, and remain in and about the said premises until the said matter becomes putrid and decayed and fills the air with noxious and offensive odors; that appellant also throws and deposits offal, filth, and animal matter in the waters of Elliott Bay, which said offal, filth and animal matter are by the action of the winds and tides cast upon the shores, and there decompose and cause nauseating and offensive smells and odors; that these nauseating, unwholesome, and offensive smells and odors so taint the air and food in and about respondent's said dwelling house that respondent's rest and that of his family is disturbed at night, and his said dwelling house is thereby rendered unfit for habitation; that, by means of the various acts and things done as above found, and by reason of the location of said slaughterhouse and stockyards with reference to the said Beacon Hill, appellant pollutes and corrupts the atomsphere in and about the homes of the people living on Beacon Hill, and thereby deprives each and every of such homes and residents of pure air; that thereby the comfort and peace of every resident of said Beacon Hill is destroyed, and said homes rendered less enjoyable, and the market value of the property on said hill is and has been greatly depreciated; that said Beacon Hill rises from 150 to 200 feet above the said slaughterhouse and stockpens of appellant, is a beautiful place in which to live, is covered with homes, and is thickly populated. The court concluded that the said slaughterhouse and stockpens were a puplic nuisance; that respondent suffered special injury therefrom and has no adequate remedy at law therefor; and that respondent was entitled to an order restraining the appellant from operating said slaughterhouse, and from slaughtering animals, rendering offal, lard or tallow, or depositing the offal or animal refuse matter in the waters of Elliott Bay, to the injury of appellant; and a decree was entered accordingly. From this decree, defendant appeals.

It is first insisted by the appellant that the complaint, upon its face, shows that the nuisance, if any exists, is a public nuisance, and does not show that the respondent is specially injured thereby; and, second, that, if respondent was disturbed by noxious smells, such disturbance was intermittent, and therefore not a cause for equitable relief. The findings of fact, as above stated, follow very closely the allegations of the complaint, and are in substance the same. For that reason, it is not necessary to set out the complaint in more detail in this opinion. Section 3084 Ballinger's Ann. Codes & St., defines a public nuisance as follows: 'A public nuisance is one which affects equally the rights of an entire community or neighborhood, although the extent of the damage may be unequal.' And the next section, in enumerating such nuisances, provides that 'it is a public nuisance * * * (7) to erect, continue, or use any building, or other place, for the exercise of any trade, employment, or manufacture, which, by occasioning noxious exhalations, offensive smells or otherwise is offensive or dangerous to the health of individuals or of the public.' Section 3087 provides that 'every nuisance not included in the definition of section 3084 is private.' Section 3093 provides: 'A private person may maintain a civil action for a public nuisance, if it is specially injurious to himself, but not otherwise.' There can be no doubt that the nuisance alleged in the complaint and shown by the evidence is a public nuisance. The right of the respondent to restrain it therefore depends upon whether the allegations of the complaint and the facts proven show that respondent is specially injured thereby. The substance of the allegations of the complaint upon this point is that the filthy pens, the offal, and the refuse matter made by appellant in the conduct of his business cause obnoxious, nauseating, and offensive smells, which taint and corrupt the atmosphere and food in and about respondent's dwelling, so that said dwelling house is thereby rendered...