Rogers v. John Week Lumber Co.

93 N.W. 821, 117 Wis. 5, 1903 Wisc. LEXIS 248

Opinion

Winslow, J.

The idea expressed by the trial court in deciding the demurrer ore tenus, that the former decision of the same court denying a preliminary injunctional order was res adjudicata as to the sufficiency of the complaint, was plainly erroneous. An order of the trial court sustaining a demurrer to a pleading is not res adjudicata upon the same questions raised upon a second demurrer. Schoenleber v. Burkhardt, 94 Wis. 575, 69 N. W. 343. Much less is an order refusing an injunction res adjudicata upon a subse quent demurrer to the complaint, for the plain reason that there are many grounds besides the insufficiency of the complaint upon which the court might well deny a motion for a temporary injunction. A complaint may be perfectly good, and yet a temporary injunction may be properly refused. However, as the court did not base his ruling upon this proposition, it is not necessary to further consider it.

Doubtless the trial court was right in stating that a planing mill is not a nuisance per se, but it is equally clear that an industry which is not a nuisance per se may be shown to be conducted in such a manner or in such a place as to be in fact a nuisance. This subject has been so recently discussed in this court that extended treatment of it is unnecessary. In McCann v. Strang, 97 Wis. 551, 72 N. W. 1117, it is said that a “lawful trade may, by reason of beingicarried on at unusual hours or in' close proximity to a dwelling house, by reason of noise and other incidents of it, constitute a nuisance.” It was further said in that case, in discussing the question of the circumstances under which a noisy trade would become a nuisance to those dwelling in the immediate vicinity, that the rule is 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.” See, also, Middlestadt v. Waupaca S. & P. Co. 93 Wis. 1, 66 N. W. 713. The injury must be substantial and tangible, and the discomfort perceptible to the senses of ordinary people. Stadler v. Grieben, 61 Wis. 500, 21 N. W. 629.

Does the complaint before us state'facts showing that such an injury is threatened to the plaintiff ? We think it does. It states, in substance, that the mill is to be located in a residence portion of tire city, within ninety feet of plaintiff’s dwelling; that its operation will necessarily create a great amount of steam, dust, dirt, smoke, and noise, which will penetrate plaintiff’s house, making it necessary to keep his windows and doors closed at all times, and rendering his home unfit to live in. We think these allegations are sufficient to bring the case witbin the rules above cited. Whether the plaintiff will be able to substantiate his allegations by sufficient proof is a question not now involved.

The jurisdiction of a court of equity to restrain the erection of a private nuisance; or a public nuisance peculiarly injurious to the party seeking the remedy, cannot be doubted. Wis. R. I. Co. v. Lyons, 30 Wis. 61; Remington v. Foster, 42 Wis. 608; Stats. 1898, sec. 3180.

By the Court. — Judgment reversed, and action remanded for a new trial.