Slight v. Gutzlaff

35 Wis. 675

• Court: Wisconsin Supreme Court
• Decided: June 15, 1874
• Status: Published

Opinion

RyAN, C. J.

The appellant is lessee of lime kilns, erected and used by his lessor before the demise, near the dwelling of 'the respondent, in a lime-burning locality. And the action is for erecting and maintaining the kilns, as a private nuisance.

Lime-burning is one of many lawful and necessary processes which may become a nuisance. Whether one can establish his abode amongst lime-kilns, and abate them all except his own, as nuisances (Rex v. Neville, Peake, 91; Rex v. Watts, 1 Moody & Malk., 273; Baneford v. Turnley, 3 Best & S., 62; Tipping v. Smelting Co., 4 id., 608; Huckenstine's Appeal, 70 Pa. St., 102), is a question which we are not called upon to decide in this case. Eor we are clearly of opinion that, if the appellant's use of the lime-lcilns be a nuisance, it is a continuing nuisance. He did not erect the kilns, or establish the business of burning lime in them. He rented the lime-kilns as such, and continued their use as such. He erected or established nothing ; he only succeeded to what had been before erected and established.

When a lessee or grantee continues a nuisance, of a nature not essentially unlawful, erected by his lessor or grantor, he is liable to an action for it, only after notice to reform or abate it. This has never been doubted in England since it was so held in Penruddock’s Case, 5 Coke, 100. The rule is very generally recognized in this country. McDonough v. Gilman, 3 Allen, 264; Woodman v. Tufts, 9 N. H., 88; Pierson v. Glean, 2 Green, 36; Huckenstine's Appeal, supra; Johnson v. Lewis, 13 Conn., 304; Thornton v. Smith, 11 Minn., 15; West v. R. R. Co., 8 Bush, 404; Grigsby v. Water Co., 40 Cal., 396. In one case it has been extended in a manner we should hesitate to sanction. Ray v. Sellers, 1 Duvall, 254. It is criticised by the court in Norton v. Volentine, 14 Vermont, 239, and more seriously questioned in Caldwell v. Gale, 11 Mich., 77, and denied by Denio, J., in Brown v. R. R. Co., 12 N. Y., 492. But it was not necessarily involved in any of those cases, which turned on other points. And we think that the rule is a just and reasonable one, doing no wrong to the party injured, and protecting the lessee or grantee from surprise and hardship. Wc therefore adhere to the rule, in the language of 0. J. Horn-BLOWER, “ as well upon the good sense and common justice of the case, as upon the ground of venerable and unquestioned authorities.”

The authority of the rule drove the learned counsel for the respondent into a very ingenious argument, that it is not the structure, but the use only, which constitutes the nuisance ; and that every new act of use is an original nuisance. The same might be as well said of most, perhaps of all, manufacturing nuisances. In such cases, the building is not of itself a nuisance ; that depends on the use; and, ceasing the use, the nuisance ceases. But the use is dependent on the building; aud the building, erected for the use, goes to the nuisance. Upon abatement, so much or all of the building as may be necessary, is demolished. When a building is erected for a use which works a nuisance, and the use is established in it, the nuisance is created, and continues till the use is abandoned. It remains a continuing nuisance, although the use be, in its ordinary course or by accident, suspended at times, until it be so suspended as to operate as an abandonment. The same position taken for the respondent here was taken by counsel in Johnson v. Lewis, supra, and pronounced by the court to be novel and unsustained by any authority.

A lime-kiln is a structure fit only for burning lime. Once erected and used, its subsequent use in the course of the business, if a nuisance, is a continuing one. Each successive burning of lime is not an original nuisance. If the respondent could have maintained this action, as for an original nuisance, he might haye prayed and recovered judgment of abatement. What could he abate in that case, upon the view of his counsel ? Only the very burning for which he brought the action, if he could catch it alive. And catching and abating it by putting out the fire, he must stand by and see the appellant begin a new burning, which would be another nuisance, not covered by his judgment; and the respondent’s remedy by abatement would manifestly end in smoke.

Here was no notice to the appellant to abate the nuisance, pleaded or proved; none apparently given, for the respondent’s conduct might, on the contrary, imply a license or assent. And as the point is directly raised by the exceptions, the judgment of the court below must be reversed.

By the Court. — Judgment reversed.