McCann v. Strang

MaRshaul, J". It is well settled that a lawful trade may, by reason of its being carried on at unusual hours or in close proximity to a dwelling house, by reason of noise and other incidents of it, constitute a nuisance and be subject to be abated as such by a court of equity at the suit of the owner of such dwelling house. The real test, it is said, whether a noisy trade is a nuisance in a particular locality and- to a particular person in the enjoyment of his property, is whether it is of such a character as would be likely to be physically annoying to a person of ordinary sensibilities, or whether it is carried on at such unreasonable hours as to disturb the repose of people dwelling within its sphere. "Wood, Nuisances, § 617. No definite rule can be given to govern all cases. Each must depend upon the particular circumstances-which characterize it. No more definite rule, applicable to cases of this kind, can be given, than that the noise and other incidents of the business must be such as would be likely to cause some actual, material, physical discomfort to a person of ordinary sensibilities, so circumstanced as the complaining party. The nature of the trade, the kind of noise, the location, and all of the attending circumstances must be taken into consideration. Stadler v. Grieben, 61 Wis. 500; Janesville v. Carpenter, 77 Wis. 288; Price v. Oakfield Highland Creamery Co. 87 Wis. 536; Middlestadt v. Waupaca Starch & Potato Co. 93 Wis. 4. In the latter case this court quoted with approval, and applied, the rule as stated in substance554 in Wood, Nuisances, § 1, 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. To the same effect are Pennoyer v. Allen, 56 Wis. 502; Baltimore & P. R. Co. v. Fifth Baptist Church, 108 U. S. 317; Appeal of Pennsylvania Lead Co. 96 Pa. St. 116; and Davis v. Sawyer, 133 Mass. 289. The. rule that an act must be such as to work some material injury in order to render it actionable as a nuisance is.far more rigidly enforced in equity than at law. Applying the foregoing to the instant case, the conclusions •of law upon which the judgment appealed from rests, followed necessarily from the facts found to the effect that the acts complained of did not cause- any material discomfort or injury to plaintiffs, or any material damage to the property described in the complaint, as a home for them. Such findings of fact were made on conflicting evidence, and, as we are unable to say that they are contrary to the clear preponderance of the evidence, we cannot disturb them on this appeal. By the Oourt.— The judgment of the circuit court is affirmed.