The Kenosha telegraph. [volume] (Kenosha, Wis.) 1860-1888, 1883-01-19

plaintiffs was held to be private nuisance,
and in deciding the learned Vice Chancellor
Knight Bruce took occasion to say that he
had no doubt. upon the facts and the law,
that the plaintiffs, as owners and occupiers
of the house, Offices and garden. we're 8 en-
titled to an uniainted and unpolluted stream
of air for the necessary supply and reason
able use of himself and family there; or, in
other words, to have there for the ordinary
purposes Of breath and life an unpolluted
and uDtainted atmosphere, mean
| ing by untainted and unpolluted not nee
essarily air as fresh, free and pure as at the
time of building the PLAINTIFF house,
but air not rendered to an important degree
less compatible, or at least not rendered in
compatible, with the physical comfort of
human existence, phrase to be understood
of course. with reference to the climate and
habits Of England That decision was sf
| frmed on appeal By Lord St. Leonards lid.
page 1885, and subsequently, approved in
Pollock vs. Lester, II Hare 266, and followed
in the Exchequer Chamber in Bamford VS..
Turnkey, Rest Smith, g. In
Re- VS.. Poppinesu, Strange, $3.50, the in
dictment was sustained, because the tannery
vas alleged to be
NEAR THE HIGHWAY.
and also near several dwelling houses. Bliss
vs.. Hall, An. c., 1885, In Francis & Schoell
kopf, 81 N. Y. 152, the plaintiff was de
priyed of the rental of her two houses By
reason Of the stencil arising from the defend
ants tannery, and it was held that she could
recover, Notwithstanding others having prop
erty in the vicinity were also injured. These
authorities are sufficient to show, that the
cause was submitted to the jury upon the
wrong theory. Many others might be added,
but it is unnecessary. OF course it now is
not 30 rigid as to make every business which
imparts any degree of impurity to the at
mosphere nuisance. The maintenance of
life and business, especially in crowded
cities, necessitates the imparting of GER
tain degree of impurity to the atmosphere.
The law gives projection only against sub
stantial injury. To be of legal cognizance
the injury must be tangible. or the discom-
fort perceptible to the sences of ordinary
people. Undoubtedly party has the un~
limited and unqualified right to use his
property as he pleases, provided he does not
so use it as to become nuisance to others.
Such rights, duties and obligations between
the respective owners of adjacent lands are
necessarily reciprocal. Persons owning
lands and operating tannery thereon, in
some unfrequented place so remote from
other dwellings and property and places
where people are accustomed to pass or be,
as not to annoy or discomfort any one else,
nor impair the use of other property, would
net be liable for maintaining a nuisance,
however unclean and filthy their tannery
might become, and however unreasonably
and improperly it might be operated. 1t is
because person maintains something that
ANNoys OR INcoMMoDEs
another or his business-something noxious
or offensive to another-that such right of
action is given. The question of nuisance,
therefore, depends not only upon the eharac-
ter of the business maintained, but its
proximity to the dwellings, business. pro-
perty or occupancy Of others. The ownership
of land carries with it the rightful use of
the atmosphere while passing over it. Title
to land gives the owner the right to impreg-
nate the air upon and over the same with
such smoke. vapor and smells as he desires,
provided he does not coutaminate the atmos-
phere to such an extent as to substantially
interfere with the comfort or enjoyment of
| others. or impare the use Of their property.
But air is movable, and constantly moving
| from the premises Of one to those of another,
| and hence when it becomes thickly impreg-
mated with putrid substances, it necessarily
| flows on to the adjacent premises in one
direction or another. This being go it fol-
| lows that any business which necessarily
and constantly impregnates large volumes
of the atmosphere with disagreeable. un-
| wholesome or offensive matter, may become
nuisance to those occupying adjacent
property, in case it is SO near, and the
atmosphere is contaminated to such an ex-
tent as to substantially impare the comfort
or enjoyment of such adjacent occupants.
When such comfort and enjoyment is so inn
paired. and compensation is demanded. it is
no defense to show such business was con-
Quoted in reasonable and proper manner,
and with more than ordinary cleanliness,
and that the odors so sent over and upon
the adjacent premises we're only such as
were incident to the business when properly
conducted. It is the interruption of such
comfort that furnishes the ground of action
and it is no satisfaction to the injured party
to be Informed that it might have been done
with more aggregation.
THE BUSINESS IS LAWFUL,
but such interruption and destruction is an
invasion of private rights and to that extent
unlawful. 1t is not 80 much the manner of
doing, as the proximity Of such business
to the adjacent occupant. which causes the
annoyance. A business necessarily con-
terminating the atmosphere to the extent
indicated, should be located where it will
not necessarily deprive others of the enjoy
ment of their property, or lessen their com
fort while occupying the same.
The manner of submitting this case to the
jury as above indicated, had direct ten
dency, as we think. to mislead the jury,
and henca the rulings mentioned must be re-
garded as erroneous. The Court was re-
quested but refused to charge the jury,
that "The rule of the law is that the posi-
tive testimony Of one creditable witness to
fact is entitled to more weight than the
testimony Of several witnesses who testify
negatively or to collateral circumstances
| merely persuasive in their character, from
which negative may be Inferred
| The correctness of the proposition cannot
be doubted Ralph 0s. Railway, 81 Wis.
1T; Bierback Us. Goodyear Company. 81
Wis. 2lS. The only question in regard to
the propriety of giving it is whether it was
applicable. The case was not one where all
the witnesses on both sides having equal
knowledge were testifying as to the exist
ence or non-existence of the same fact
occurring at the same time and place, and,
hence does not come within the exception to
the rule given in Foley u.s. Thomas, SO Wis
BIZ, nor does it come within the exception
given in Berg Os Railway, so Wis, 419.
THE PRESENCE AND CHARACTER
of the o1or at the water cure would neces-
sarily depend much upon the extent and
direction of the wind and other circumstan.
ces. The evidence covers several years It is
quite apparent that the absence of such
| ndnra at any nartinnlar tina and undar