Wasilewski v. Biedrzycki

192 N.W. 989, 180 Wis. 633, 1923 Wisc. LEXIS 105

Opinion

The following opinion was filed April 3, 1923:

V in je, C. J.

Exceptions are taken to some of the findings of fact; but the findings are not seriously urged to be without any support in the evidence. It is claimed that the finding that the proposed garage is in a local business district is contrary to the evidence because of the amendment of the zoning ordinance enacted after defendant obtained his permit from the building commissioner, making the place a part of a residence district. We are of the opinion that the subsequent amendment cannot affect defendant’s right to erect a building. Such right accrued under valid laws, and the building, but for this action, would probably have been in part, if not wholly, completed before the amendment became effective. Moreover, it is quite clear that under the authority of State ex rel. Nehrbass v. Harper, 162 Wis. 589, 156 N. W. 941, the amendment, so far as here relied upon, is void because it leaves it to the judgment of the property owners to say whether or not a garage shall be built. That is an unlawful delegation of legislative power. So we conclude that the zoning ordinance does not affect the case, and we shall not pass upon a number of questions suggested as growing out of it.

A careful perusal of the evidence shows that the court’s findings which control the case are well supported by the evidence. That being so, no restatement of the law of nuisances or the distinguishing of cases is necessary. It falls well within the established rule that a business such as this, and where this is to be carried on, does not constitute a nuisance. McCann v. Strang, 97 Wis. 551, 72 N. W. 1117; Wahrer v. Aldrich, 161 Wis. 36, 152 N. W. 456; Clark v. Wambold, 165 Wis. 70, 160 N. W. 1039. In Cunningham v. Miller, 178 Wis. 22, 189 N. W. 531, it was found in effect that the location of a funeral parlor in the particular residence district would injuriously affect persons of ordinary sensibilities. We have no such finding or situation here. When we add to this the fact that this is an action to restrain the erection of an alleged nuisance, and that in such a case as stated in Wergin v. Voss, 179 Wis. 603, 192 N. W. 51, a court of equity will act “only where it clearly appears that a nuisance will necessarily result from the contemplated act or thing which it is sought to enjoin,” it becomes clear that the trial court correctly disposed of the case.

By the Court. — Judgment affirmed.

A motion for a rehearing was denied, with $25 costs, on June 5, 1923.