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or annoys another in the enjoyment of his legal rights. Nuisances are either public or private. A public or common nuisance affects the rights of the community in general, or a portion of it, and not merely the rights of a few persons. Public nuisances are punishable by the criminal law, although they may also be ground for civil action. A private nuisance is one which affects and damages a particular person or persons. A public nuisance may also be a private nuisance. This is so when a public nuisance causes special damage to a private person or persons, but the damage must be different not only in degree, but also in kind from that done to the public generally; that is, the damages resulting from the injury must be of a different character than the injury suffered by the rest of the public and not a part of the common injury caused by the nuisance. Thus, an obstruction which prevents the lawful use of a public street or highway besides being a public nuisance, is a special injury to adjoining lot owners and is a private nuisance also as to them and may be enjoined by them. The whole doctrine of nuisances may be fairly said to be a development of the maxim that every person is so bound to conduct himself and so to use and enjoy his own property as not to cause unnecessary annoyance or obstructions to others. What is a reasonable use of property, will depend on the circumstances of each case. A use of property in one locality and under some circumstances may be reasonable and lawful, which under other conditions would be unreasonable and a nuisance. The most important circumstances to be considered on the question of what is a reasonable use of property, are the locality, the extent of the annoyance and the nature of the act or thing itself. A public nuisance cannot be justified by the length of time it has been carried on, or the amount of money invested, or the influence it has upon the prosperity of the community, yet all these may be considered by the jury. The intent or motive with which the act is done is immaterial. It is not a defence to a nuisance that the party complaining came to the nuisance, which existed before he came into that neighborhood.
That which may not be a nuisance in one place, may become one in a different place in view of the circumstances of the locality in which it exists. The business must be carried on in a convenient place and what is a convenient place is a question for the neighbor and not for the manufacturer. Any
business, though in itself lawful, which necessarily and constantly impregnates large volumes of the atmosphere with disagreeable, unwholesome and offensive matter, may become a nuisance to those occupying adjacent property, in case it is so near and the atmosphere is contaminated to such an extent as to substantially impair the comfort or enjoyment of such adjacent occupant. In such case it is no defense that the business was conducted in a reasonable and proper manner, and with more than ordinary cleanliness, and the odors sent over and upon adjacent premises were only such as were incident to the business as usually conducted. If visible damage results to the party complaining by virtue of the nuisance the business is not carried on in a convenient place in the above legal sense. But a person living in a populous community must suffer some annoyances which he would not be subject to if living in the country. He cannot bring action for slight detriment which may be brought about by a customary business carried on in his vicinity. Thus, an electric light plant will not be abated as a nuisance where it is operated in a manufacturing district, does not emit offensive smoke or cinders, and does not materially injure the plaintiff's property, though the machinery makes a buzzing noise till a late hour of the night.
Filling the air with smoke, dust, vapors, noxious gases, odors, cinders, or producing disturbing noises, may constitute a public or private nuisance, or both. In a leading English case the court says that in order to give right to relief owing to the pollution of the air by smoke it should cause an inconvenience materially interfering with the ordinary comfort, physically, of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain, sober and simple notions among the English people."
Noises may or may not be nuisances, depending on the surrounding circumstances. A noise may be allowable in the ordinary pursuit of a trade or calling if made during reasonable hours, yet it may become a nuisance if made at unreasonable hours or if unnecessarily or maliciously made. The locality is a chief factor to be considered.
The pollution of water often creates a nuisance. A proprietor of land has the right to enjoy the use of water of a river which flows upon his land for his cattle and for domestic purposes, without having the purity destroyed by the dis
charge of slops, manure or other offensive and deleterious substances from a distillery, cattle stables, etc. maintained by an upper proprietor on the same stream; and a violation of this riparian right may be the ground of such special damage as will entitle him to maintain a private action for a nuisance against the upper proprietor. This is also a public nuisance.
In regard to private nuisances our statutes provide: “The circuit court shall have jurisdiction of actions to recover damages for and to abate private nuisances or a public nuisance from which any person suffers a private or special injury peculiar to himself, so far as necessary to protect the rights of such person, and to grant injunctions to prevent the same; and in case such nuisance may work an irreparable injury, interminable litigation, multiplicity of actions, or either, or the injury is continuous and constantly recurring, or there is not an adequate remedy at law, or the injury is not susceptible of adequate compensation in damages at law, then an action in equity may be maintained and an injunction be issued therein, and an equitable action may be brought before the nuisance or the infringement of plaintiff's right is established at law."
"In such actions, when the plaintiff prevails, he shall in addition to the usual judgment for damages and costs, also have judgment that the nuisance be abated and removed, unlegg the court in which such action shall be tried shall certify, in the minutes of such trial, that the abatement thereof is unnecessary."
Damage by animals.--Animals may be either wild (feræ naturæ) or domestic. The ownership of wild animals is in the State, but when captured or under the control of the capturer so they cannot escape, they are the property of the one who captured them.
The owner of wild animals (ferae naturae), such as lions, tigers, bears, etc., is liable to all persons damaged by them who are not guilty of negligence. It is his duty to keep them from doing damage under any circumstances, and he must do this at his peril.
While at common law the owner of domestic animals was not liable for injuries done by them, unless such owner had notice of their propensity to do damage, this rule has been abolished nearly everywhere as to dogs, and in Wisconsin such notice (scienter) need not be proved in order to make
the owner liable for damage done by them. Our statutes provide that if the owner or keeper of a dog does not keep him confined after notice that the dog has worried, wounded or killed horses, cattle, sheep or lambs, such owner shall be liable to pay double the value of any horse, cattle, sheep or lambs which may be thereafter injured or killed by such dog; and if the injury complained of was to a person, the owner is liable for treble the damages after such previous notice. Our statutes also provide: “Any person may kill any dog that he knows is affected with the disease known as hydrophobia, or that may suddenly assault him while he is peacefully walking or riding and while being out of the inclosure or immediate care of its owner or keeper, and may kill any dog before its return to the inclosure or immediate care of its owner or keeper, which shall be found killing, wounding or worrying any horses, cattle, sheep, lambs or other domestic animals."
At common law, every man is bound to keep his cattle on his own land at his peril. But this rule has been modified in many jurisdictions, including Wisconsin, so as to require owners or occupiers of lands to enclose the same in order to be able to recover for damage done by trespassing cattle belonging to adjoining owners. Our fence laws are such that occupants of adjoining lands used and occupied for farming purposes may compel each other to contribute towards the erection and maintenance of partition fences by making proper application to the fence viewers. The proceeding, however, is a technical one. “The respective occupants of adjoining lands, used and occupied for farming purposes, shall keep and maintain partition fences between their own and next adjoining premises in equal shares so long as both parties continue to so occupy the same, and such fences shall be kept in good repair throughout the year unless the occupants of the lands on both sides otherwise mutually agree. And owners of lands who do not keep and maintain in repair lawful partition fences shall not be entitled to recover any damages whatever for trespasses by the animals of owners of any adjoining lands with whom partition fences might have been maintained if such lands had been inclosed.” Accordingly, where adjoining lands of plaintiff and defendant were used for farming purposes, but were not enclosed, and defendant's horses escaped from his lands to those of the plaintiff, there could be no recovery for the damage done.
The forms in this book are arranged in alphabetical order and will be found indexed in alphabetical order in the Index on Forms. They are also indexed under appropriate headings in the General Index. When necessary, the forms have been adapted to the laws of Wisconsin, thus making them safe and convenient for use in this state.
When a printed form is used, caution should be exercised to see that it contains exactly what is wanted and that it is properly filled out. When using the forms, it is advisable to consult the General Index and refer to the text on the given subject before executing same.
A seal or scroll is required in executing conveyances of land. There must be two witnesses. As to the officers before whom acknowledgments may be taken, see Section 3 in the Chapter on Real Property. When a conveyance is acknowledged before a notary public, he should state when his commission expires and attach his seal. The wife usually joins in the conveyance of the husband, in which case no separate acknowledgment is necessary as to her, as is the practice in some states.
ACKNOWLEDGMENT. STATUTORY FORM. STATE OF WISCONSIN,
Personally came before me, this
190... the above (or within) named.
(and.. his wife) to me known to be the person who executed the foregoing (or within) instrument and acknowledged the same.
(Name and official title.)