Wergin v. Voss

Owen, J. The proposed building, the erection of which is sought to be restrained, is to be used by the defendant as a veterinary hospital. So far as its-alleged objectionable features are concerned it is comparable to, and certainly does not more nearly approximate a nuisance than does, a livery stable. It seems to be pretty well settled that a livery stable is not a nuisance per se. 20 Ruling Case Law, 414; 29 Cyc. 1176; 2 Wood, Nuisances (3d ed.) § 594; Rounsaville v. Kohlheim, 68 Ga. 668; Kirkman v. Handy, 30 Tenn. 406; Albany Christian Church v. Wilborn, 112 Ky. 507, 66 S. W: 285. As was said in Kirkman v. Handy, supra, “We have been referred to no case in which a stable of any soft, whether public or private, wherever situated, is held to be ipso facto a nuisance.” But it is well recognized that a stable ma}*- be so maintained and operated as to become a. nuisance, and equity will not hesitate to enjoin the operation and .maintenance of a stable in a manner which constitutes it a nuisance. See note on p. 959,. 49 L. R. A. N. s. The instant case presents an application to a court of equity to restrain a threatened or. prospective nuisance. While a court of equity may enjoin a threatened or anticipated- nuisance, public or private, it should do so only where it clearly appears that a nuisance will necessarily result from the contemplated act or thing which it is ought to enjoin. “The general' rule is that an injunction will only be granted to restrain an actual existing nuisance; but where it can be‘plainly seen that acts which, when completed, will certainly constitute or result in a grievous nuisance, or where a party threatens, or begins to do, or insists upon his right to do certain acts, the court will interfere, though no nuisance may have been actually committed, if the circumstances of the case enable the court to form an opinion as to the illegality of the acts complained of, and the irreparable injury which will ensue.” Adams v. Michael, 38 Md. 123. [607] See nqte found in 7 A. L. R., p. 749, from which we excerpt the following: “Generally the court ought not to interfere where the injury apprehended is of a character to justify conflicting opinions as to whether it will in fact ever be realized.” “To authorize an injunction it must be established by satisfactory evidence that the threatened or apprehended injury will probably result.” “The plaintiff must make out a strong case of probability that the apprehended mischief will arise.” “A showing of probable or contingent injury is insufficient. The injury must be inevitable and undoubted.” Tested by these rules, the judgment of the lower, court cannot be disturbed, in view of the finding that “this building, proposed to be erected in the manner described, will not be a private nuisance. and that no offensive odors will emanate therefrom which will be detrimental to or injure the health or comfort of any residents, if properly kept, and that the erection of said building as designed will not ipso facto depreciate the value of the property in that immediate vicinity.” The evidence is quite persuasive that the defendant is taking every precaution to render the building sanitary and inoffensive to adjacent property owners. We think it quite clear that the contemplated injury does not appear with that degree- of certainty necessary to justify the interference of a court of equity at this time. If in the course of time the operation and maintenance of the hospital shall become offensive and actual damages result to neighboring property owners, another and different question will be presented. Appellants place great reliance upon the case of Cunningham v. Miller, 178 Wis. 22, 189 N. W. 531, where this court upheld a judgment of the circuit court perpetually enjoining and restraining the defendant from operating an undertaking or fcmbalming establishment. In that case, [608] however, the trial court affirmatively found that the operation of the undertaking establishment in the locality resulted in injury to plaintiff’s property, and the result of its actual operation constituted a nuisance which should be abated. The two cases are not at all parallel. In that case the lower court found that the actual operation of the undertaking establishment resulted in a nuisance. In this case the lower court refused to find that the contemplated construction of the veterinary hospital amounted to a threatened or prospective injury to the plaintiffs or their property. In the consideration of the case thus far we have confined ourselves to common-law principles. Speaking of a livery stable, the United States supreme court, in Reinman v. Little Rock, 237 U. S. 171, 176, 35 Sup. Ct. 511,. said. “Granting that it is not a nuisance per se, it is clearly within tire police power of the state to regulate the business and to that end to declare that in particular circumstances and in particular localities a livery stable shall be deemed a nuisance in fact and in law, provided this power is not exerted arbitrarily, or with unjust discrimination, so as to infringe upon rights guaranteed by the Fourteenth amendment.” To bring this case within the principle there announced, appellants place some reliance upon a pretended ordinance of the city of Antigo which declares the section here in question to be a residential district and prohibits the erection’ of certain classes of buildings within that district. . Upon the trial appellants introduced a typewritten document which purported to be an ordinance of the city of Antigo. The offer, however, was not accompanied with any proof of the adoption of the ordinance by the common council or of its publication. The proof failed to establish the fact that it was an ordinance of the city. Our attention is called to the provisions of sec. 4137, Stats., as amended by ch. 390 .of the Laws .of 1921, which provides that “municipal courts may take judicial notice of ordinances in cities [609] ■in which they have jurisdiction.” It is claimed that by virtue of this provision’ it was unnecessary to prove the ordinance in the municipal court, as that .court was bound to take judicial notice of its existence. No reference was made to this ordinance in the decision or in the findings by the lower court. Whether the ordinance has a legal existence we have no way of knowing. We are not authorized to take judicial notice of it as a matter of "law and, indeed, it is difficult to see how we could do so as a matter of fact. What effect, if any, such an ordinance would have upon the rights of the parties we cannot consider. While in the present case it is plain that the municipal court gave no weight to this pretended ordinance, the question recurs as to a situation arising upon an appeal from a judgment of a municipal court depending for its validity upon an ordinance concerning which the municipal court may, but this court may not, take judicial notice. How is this court to know whether such ordinance has a legal existence? It is ■'suggested that under such circumstances. the municipal court should find as a fact the existence of such ordinance. Such a finding would be conclusive upon this court unless contrary to the great weight of the evidence, a situation that would not arise unless the legal existence-of the ordinance was challenged in the lower court. This suggestion is somewhat beside the case, but is made for the future guidance of municipal courts where their-judgments depend upon the existence of ordinances of which they but not this court may take judicial notice. By the Court. — Judgment affirmed.'