Bishop v. Banks

Pak£, J. The respondent has successfully answered all the claims of the petitioner for a continuance of the injunction, with but one exception, and that is, in relation to the bleating of calves kept upon the premises for slaughter. We think the facts found by the court below upon this subject are sufficient to require the interposition of the court to prevent its continuance. It is found that the annoyance to the petitioner, proceeding from this cause, was so great at times as to drive him and his family from the occupancy of that part of his house nearest to the premises of the respondent. The court presents an extreme case of the kind — one that will constitute a nuisance, if a nuisance can be produced from such cause. In the cases of Whitney v. Bartholomew, 21 Conn., 213, and of Brown & Brothers v. Illius, 27 id., 84, this court distinctly recognize the doctrine that a nuisance may be produced by offensive sounds in the prosecution of business lawful per se. The same doctrine is held in the case of Soltau v. DeHeld, 9 Eng. L. & Eq. R., 104, where an injunction was granted to restrain the ringing of church bells by a Roman Catholic community, although they were rung only upon the Sabbath. . They were located so near a person’s residence that his peace and quiet were greatly disturbed. If sounds of such a character and so made can be sufficient to constitute a nuisance, how can it be questioned in the case under consideration ? • It is difficult to conceive of any noise more destructive to the comfort and happiness of a family than the constant wailing of animals in distress in the immediate vicinity of their residence. Enjoyment under such circumstances would require nerves of brass and a heart of steel. But it is unnecessary to pursue this subject, for reason and law harmonize in declaring that the conduct of the respondent in this particular is unlawful and wrong. He should remember the [122] maxim sic utere tuo ut alienim, non Icedas, and conduct accordingly. The remaining claims urged by the petitioner for a continuance of the injunction are not supported by the allegations of his bill and we do not therefore consider them. We advise the superior court to so modify the injunction that the respondent may be allowed to prosecute his business, but to prevent the bleating of calves and the raising of offen- . sive smells to the annoyance of the petitioner. In this opinion the other judges concurred.