Greene v. Nunnemacher , 36 Wis. 50 ( 1874 )

Cole, J.

This action is brought to recover damages for erecting and maintaining a nuisance, and for an abatement of the nuisance itself.

Among other objections which are taken to the complaint, on demurrer, it is claimed and insisted that it does not appear with sufficient certainty that the plaintiff was the owner of the premises affected by the nuisance at the time the acts complained of were committed. This objection is not well taken. It is distinctly averred that the plaintiff was the owner in fee and in possession of the premises described, and had for several years past been in the actual occupancy and possession of the same as and for a homestead, using them for agricultural purposes, and keeping in connection therewith a public inn or saloon for the accommodation and entertainment of the public. The complaint afterwards shows fully the nature and character of the nuisance, by which it is alleged the plaintiff is damni-fied. But it clearly appears, we think, that the plaintiff was the owner and in possession of the premises which it is claimed were injured by the nuisance.

It is further objected that the nuisance complained of is a common nuisance, and that the remedy for its abatement is by indictment or information by the state, and not by a private action brought' by an individual. The law is doubtless well settled, that no action will lie by an individual for the abatement of a common nuisance, unless special damage is alleged and proven by the party bringing such action. But when the aggrieved party suffers actual damages which are peculiar to himself, and not such as he suffers in common with the public at large, then the law gives him a right of action for his own special and particular injury. This rule is believed to be so elementary as to require no argument, nor the citation of authority in its support; and none will therefore be given.

Now it may require some liberality of construction to bold the complaint sufficient and as stating a case within this well recognized doctrine, but we are inclined' to say that it does show that the plaintiff has sustained some special and peculiar injury in consequence of the nuisance, and which is not common to the whole community. It appears that the plaintiff owns a parcel of land bordering on the Kinnickinnic River, and that the defendant Jacob Nunnemacher is the owner of a much larger tract of land above him, through which the river flows. It is averred that the defendant Jacob has erected and continues to maintain on his premises a distillery, and, in connection therewith, large stables and an extensive hog yard, all in close proximity to the river ; and that slops, manure and other substances are constantly poured from the distillery and these yards into the river, entirely corrupting and putrifying the waters below his land; and that the vegetable and animal substances which are thus discharged into the river, settle upon and penetrate the bottom and banks of the river and adjoining lands, infecting the air with the most offensive, noxious and unwholesome smells and miasma, to the great injury and detriment of all persons living in the vicinity, and more especially the plaintiff and his family.

If the plaintiff is a riparian proprietor, he has the undoubted right to enjoy the use of the waters of the river for his cattle and for domestic purposes without having their purity affected or their quality destroyed by the upper proprietor. And it would require no argument to show, in such a case, that the rights of the plaintiff would be most injuriously affected by the acts complained of, which corrupt and pollute the stream. But it is not entirely clear, upon the allegations of the complaint, that the plaintiff is entitled to this use of the water in consequence of being a riparian proprietor lower down the river. For, according to the description of his premises as given in his deed, there is reason for saying that they are limited to the river banJc, and do not in fact include the bed of the stream or the waters of the same. It is true there is a further allegation subsequently made, to the effect that the river passes “ partly around and partly through ” the plaintiff’s land, which, considered by itself, would certainly show that the plaintiff was the owner of the land actually included in the bed of the river, and of course, as such owner, entitled to the use and enjoyment of the water in a natural state of purity. And if this is really the situation of his premises, it needs no argument to show that so far as he is concerned he has the right to insist that the defendants shall not foul and corrupt the waters by discharges and slops from their distillery and hog and cattle yards, so as to render the waters unfit for agricultural and domestic purposes. Upon these facts we should be unwilling to hold that the plaintiff could not maintain an action for the abatement of the nuisance, and for the special injury which he had sustained in consequence of its erection and maintenance. See Carpenter v. Mann, 17 Wis., 155; Enos v. Hamilton, 27 id., 256.

But this is not all there is of tbe complaint upon which a right to bring the action is founded. It is also stated -and alleged that, in consequence of the existence of the nuisance and the unhealthy condition of the surrounding atmosphere, the plaintiff has been and is now deprived of a great many customers and of much patronage in his business as a tavern or saloon keeper, and that his profits therefrom in his business have been diminished to the amount of at least five thousand dollars per year; that he and his family, consisting of himself and wife, have been and are, day and night, when at home, deprived of fresh, pure and healthy atmosphere, which they are entitled to enjoy, and which they did enjoy before the committing of the several acts and grievances by the defendants complained of, and are constantly exposed to the breathing of the most noxious and offensive miasma and malaria, which has greatly weakened and injured them in their health, and subjected them frequently to illness and indisposition. It seems to us that these facts sufficiently show that the plaintiff has suffered special and particular injury from the nuisance, not common to the other members of the community. He has sustained loss in his business and sickness in his family as the direct consequence of its existence; and we see no reason for denying him a, remedy for these damages. They are not only greater in degree, but they are different in kind from the injury to others; especially is this true in respect to being deprived of his customers and patronage in his business. We are therefore inclined to hold that the complaint states a cause of action within the rule, and that it is not open to objection for not showing particular damage to the plaintiff in consequence of the nuisance.

There is, however, another objection taken to the complaint, which we think must be sustained. It is, that several causes of action have been improperly united. It appears that Jacob Nunnemacher is the owner of the premises on which the nuisance is situated, and that he erected and, maintains it. He is doubtless liable for having created and maintained it. It is alleged also that the defendant Herman Nunnemacher ran the distillery and establishments therewith connected for one year or more previous to the month of May, 1873 ; that Jacob ran and operated the same from the month of May, 1873, to the month of August, 1873; and the other defendants, Christian Guenther and Hobert Nunnemacher, from the month of August, 1873, to the commencement of the action. Now, assuming as we well may, that the tenant is liable during his term for maintaining the nuisance, it seems clear that he cannot be held liable for damages sustained before and after the expiration of the term. Herman may be liable for the year ending May, 1873, together with his father; but upon' what ground can he be held liable after that'time? True, there is an allegation that the distillery has at different times been run and operated for the benefit and profit of all the defendants; yet this shows no joint liability. Because they derived a profit from the distillery, we cannot infer, in view of the specific allegations in regard to their tenancy, that they were jointly liable for maintaining the nuisance at the same time. The complaint therefore states a cause of action against Jacob and Herman for one period; and a cause of action against Jacob and the other defendants for another period; and then against Jacob alone; but there is no necessary connection in these causes of action. Why should they be united in the same action ? They are distinct, independent and separate, and have been improperly united. Lull v. The Fox & Wisconsin Imp. Co., 19 Wis., 101; Arimond v. The Green Bay & Miss. Canal Co., 31 id., 316; Hess v. The Buffalo & Niagara Falls R'y, 29 Barb., 391. The tenants should not be held liable for damages caused by the owner before the commencement of their terms, nor should they be held liable for each other, when in no way connected. This, it seems to us, is very obvious. For this reason we think the demurrer to the complaint should have been sustained.

By the Court. — The order of the circuit court, overruling the demurrer, is reversed, and the cause is remanded for further proceedings according to law.