Middlestadt v. Waupaca Starch & Potato Co.

Maeshall, J. It is contended that mere contamination of the water of the Waupaca river so as to injuriously affect the personal comfort of plaintiff and his family, and deprive him of the use of the water of such river for the purpose of watering his stock and for ordinary domestic uses as he could and did before defendant’s wrongful acts, does not constitute a nuisance so long as the evidence does not show any loss of life or health; and plaintiff was a farmer.having but a few head of stock, aud owning the land for only 100 rods [4] along the river, and there was no evidence to show that he ever used the water for household purposes. "Wood, Nuisances, § 1, states the rule thus: “Every unlawful use by a person of his own property in such a way as to cause an injury to the property or rights of another, and producing material annoyance, inconvenience, discomfort, or hurt, and every enjoyment by one of his own property which violates the rights of another in an essential degree, constitutes an actionable nuisance, and damages are presumed.” It is too well settled to need discussion at this time that a riparian owner of property is entitled to have the water of a stream flow to and through or .by his land in its natural purity, and that anything done which so pollutes such water as to impair its value for the purposes for which it is ordinarily used by persons so circumstanced, causing offensive odors to arise therefrom and injuriously affecting the beneficial enjoyment of adjoining property, may be restrained at the suit of the injured party; and neither distance from the source of pollution, nor public convenience, nor difficulty in avoiding the trouble can either justify or excuse the wrong; nor is actual pecuniary loss necessary in order that an action may be maintained, to restrain it. The doctrine of equity applies that, where there is no adequate remedy at law and there is an appreciable injury to a right, though no actual damage in the sense of ascertainable pecuniary loss can be shown, an action lies for damages against the person responsible for the wrong, and to restrain its continuance, and nominal damages will be presumed, to sustain the action. Wood, Nuisances, §§ 433-442. Also, in respect to the essential principles involved, see Pennoyer v. Allen, 56 Wis. 502; Greene v. Nunnemacher, 36 Wis. 50; Stadler v. Grieben, 61 Wis. 501, and cases cited therein. In the last case the present chief justice stated the rule in effect thus: It is well settled that the law 'gives to every person protection against every substantial injury to his rights. Let the [5] injury be tangible, or the discomfort perceptible to the senses ox ordinary people, or the uses of the property be materially affected or impaired, and an action accrues, either in law or in equity, to remedy the wrong. See, also, Robertson v. Stewart, 11 Sess. Cas. (3d Series), 189,—a Scotch case,— which was an action to restrain the operation of a starch factory in such a way as to pollute the waters of a stream bounding plaintiff’s property. The court held that the putting of refuse matter from the factory into the stream so as to cause offensive odors to arise from the water constituted an actionable nuisance; though not a very great nuisance, yet actionable. The facts found by the trial court, including the assessment of damages, are well supported by the evidence; and the injunction goes no further than to restrain the defendant from operating the factory in such a manner as to seriously affect plaintiff and his family in the enjoyment of his property. It is fully warranted by the facts found. By the Court.— Judgment affirmed.