Daily capital journal. (Salem, Oregon) 1903-1919, 1911-06-15
TempIetOn v. Williams Bros. Trans.
fer Co., CIackamaS Comfy,

TempletOn V. Williams Bros. Trans.
fer Co., ClackamaS County.
Charlotte Templeton, respondent, V.
E. Williams, A L. Williams, ]. Z.
Williams and David Williams, part
ners as Williams Bros. Transfer Co.,
appellants.
Appeal from the circuit court of
Clackamas county. The Hon. Thomas
A Mcbride, judge. Argued and sub
mitted June 6, 1911. Joseph F..
Hedges, attorney for respondent
Walter A. Dimick. (Dimick & Dimick
on the brief). Bean, ]. Affirmed.
This is a suit to enjoin the use of
a barn in Oregon City, Clackamas
county, Oregon, as nuisance. From
a decree in favor of plaintiff defen-
dants appeal.
Plaintiff is the owner of lots and
4, block 90, in said city, upon which
are two dwelling houses, while de-
PENDANTS are the owners of lots 5
and of said block, upon which,
within about 10 feet of one of plain
tiff's dwellings and about so feet
from the farther house, there has
lately been constructed a barn 40 by
80 feet in dimensions, in which are
stabbed some 16 horses, defendants
being in the drayage business. There
was for several years upon the lots
of defendants an old barn, which
was torn down, and in its place the
new barn erected.
Plaintiff alleges that during a large
portion of the year, when the pre-
vailing wind is from the southwest,
the stencil and obnoxious odors from
the stable are carried into the dwellS
ings, causing the plaintiff and her
tenants great discomfort; that it
causes an accumulation of flies and
vermin and the fostering of rodents
in and about the houses, and renders
her property both less useful and
less valuable.
Defendants deny the material allie
cations of the complaint, alleging
that the old barn had been there for
20 years, of which fact plaintiff was
aware when her dwellings were
erected; that the barn is connected
with the city sewer system, and that
it is kept in a cleanly manner.
Bean. ]. Except in degree there is
but little difference in the testimony
on the part of plaintiff from that of
defendants. The testimony shows
plainly that the barn is constructed
of wood, and located in residence
portion of the city; that about 16
horses are kept therein, and that the
noise made by them often disturb the
slumbers of the occuDants of the
nearer dwelling; that when the wind
blows from the direction of the sta
BILE. obnoxious odors emanate there
from and blow into the house, in or
der to keep out which the occupants
are at times compelled to close their
doors and windows; that it causes an
accumulation of house and green
flies in and about the dwellings, and
that while the stable is connected
with the city sewer system, and kept
as clean as it well can be when used,
nevertheless it causes the annoy
ances and discomforts mentioned bv
plaintiff in her complaint, and which
| are shown by the testimony: that IL
creates an unsanitary condition for a
residence locality. and deteriorates
the value of plaintiffs property The
OCCUPANTS of the nearer house, being
caused the greater amount of dis
comfort. tends to show that in this
| instance distance lends enchant-
ment," or at least diminishes the OBJ
noxious odor. In fact the strong
noint of the defense seems to be that
the wind sometimes blows other thar
toward plaintiffs dwellings, anC
while defendants do not seem to no
| tice the annoyance as much as plain
| tiff and her tenants. vet one of then
testifies that he had noticed the
stencil from the small barn of anoth
er neighbor, when horse and COW
we're kept therein. 1t is shown thai
the odor from the old barn was a
times "pretty rank" The testimon!
on the part of defendants appears tt
be merely in the line of minimizing
the noise and offensive odors.
First, we will state briefly the rult
of law, which we think should gov
ern case of this kind: A mai
!
not to injure another, or the prop
erty of another. Fish V. Dodge, a
Am. Dec, 254. A stable or barn |
not a nuisance per Sc, but may be
come one from the manner in whicl
it is constructed or maintained, or b.
reason of its improper location be
ing necessarily injurious to a neigh
Dor. 29 Cyc., 1881; Shiras V. Oling
er, so Ia, 571. Where the odor
from a stable on adjoining premise
are so offensive as to render the oc
cupany of the property by tenant
materially uncomfortable and disa
greeable, an owner, injured in hi
property rights, is entitled to an in
junction. In cases, however, Wher
the nuisance consists of the name
in which the stable or barn is KEEP
an Injunction should be granted
prevent continuance of the cause
, constituting the nuisance. In such
case there Is not an unreasonable iT
reference with the defendant
rights. A person about to erect
, livery stable with a plank floor upo
his own land, on a public street in
city, near a hotel owned by anothe
where it's location would cause irrt
| yocable injury to the hotel owne
resulting, in consequence of the III
healthy effluvia arising therefor
{ the collection and swarming of file
o and the stamping of horses therei
a in the loss of health and comfort
!. such family. and in the loss OF pi
tronage to his hotel, the erection
Y the stable would operate as a nu
: sance to the adjoining owner, ar
he would be entitled to an injunctio
. restraining its erection. Joyce, La
). of Nuisances, Secs. 2O4, 205; Catlin
Valentine, 38 Am. Dec, 567; AS
a brook V. Commonwealth, SO Al