Teinen v. Lally

Young, J. Action to abate an alleged nuisance. The parties to this action occupy residences situated upon adjoining lots in block 32, in Keeney & Devitt’s Second addition to the city of Fargo. The alleged nuisance consists of a privy, which the defendant Susan A. 154 Lally caused to be constructed on lots owned by her, to be used in connection with two dwelling houses thereon situated, which dwelling houses are occupied by the other defendants as tenants. The complaint describes the location of the objectionable structure, with reference to plaintiff’s residence, and alleges that it is an offense to decency, and that it destroys the comfort of plaintiffs’ home. The answer places in issue only the offensive character of the structure, and the allegation that it constitutes a nuisance. The case was tried to the court without a jury, under § 5630, Rev. Codes. The trial court found that it was not a nuisance, and directed the entry of a judgment for defendants. Plaintiffs appeal from the judgment. (86 N. W. Rep. 356.) We are limited, by the record presented on this appeal, to a consideration of the single question whether the findings made by the trial court sustain the judgment appealed from. The issues of fact are not here for trial de novo. A statement of the case is contained in the record which embraces all the evidence offered in the trial'court, but it contains neither a demand for a retrial of the entire case nor of any particular fact. Under these circumstances, we are without authority to retry all or any of the facts in issue. Bank v. Davis, 8 N. D. 83, 76 N. W. 998; Erickson v. Bank, 9 N. D. 81, 81 N. W. 46; Ricks v. Bergsvendsen, 8 N. D. 578, 80 N. W. 768; Hayes v. Taylor, 9 N. D. 92, 81 N. W. 49; Mooney v. Donovan, 9 N. D. 93, 81 N. W. 50. From an examination of the findings contained in the judgment roll, it appears that the trial court expressly found that the privy of which plaintiffs complain is not a nuisance. Such structures are common accessories to well ordered residences, and are not nuisances per se. They may become so under some circumstances. But the question whether a privy is a nuisance is a question of fact to be determined on the evidence in each case. Douglas v. State, 4 Wis. 387; Smith v. Russ, 17 Wis. 234, 84 Am. Dec. 739; People v. Carpenter, 1 Mich. 273. In Hart v. Mayor, etc., 3 Paige, 218, it was said that “the question of nuisance or no nuisance is always a question of fact.” See, also, Com. v. Colby, 128 Mass. 91; Pilcher v. Hart, 1 Humph. 524. The trial court having found that the privy in question is not a nuisance in fact, the judgment for defendants followed necessarily, and the same must be affirmed; and it is so ordered. All concur.