Behnisch v. Cedarburg Dairy Co.

Rosenberry, J.

It is the contention of the defendant that it and its predecessors in interest had acquired a prescriptive right to empty waste and wash waters into the creek in question. The failure of the court to so find is assigned as error. The finding of the court upon this issue is amply supported by the evidence. The evidence is quite conclusive that the amount of waste water deposited in the creek in question had been largely increased during the two years immediately preceding the commencement of the action. Such being the case, we do not need to consider whether or not the defendant could acquire a prescriptive right to pollute the waters of the stream in question. If a prescriptive *38 right could be acquired, it must necessarily be restricted to its limits when the period of prescription commenced, even though the right be asserted on behalf of the public. Platt Bros. & Co. v. Waterbury, 72 Conn. 531 , 45 Atl. 154 , 48 L. R. A. 691, and note on p. 705.

A prescriptive right is not enlarged by the enlarged use during the period of prescription, enjoyed by those who claim it, but is measured by. the extent' of the use at the commencement of the prescriptive period. Smith v. Russ, 17 Wis. 227 .

The defendant very "energetically contends that the emptying of the waste into the creek is but a contributing and not the sole cause of the injury sustained by the plaintiffs. Upon this branch of the case we are of the opinion that the findings of the court are well sustained by the evidence.

The defendant also contends that the judgment is too broad, and with this contention we agree. The action was begun to secure an abatement of a nuisance and to restrain the defendant from continuing a practice which had resulted in the creation of a nuisance. By the judgment the defendant is required to fix its septic tank to comply with the rules of the public board of health and the laws of the state of Wisconsin, is required to flush the creek whenever ordered to do so by the public board of health or the board of health of the city of Cedarburg, and is required to connect up with the sewer apparently then in process of construction. We find no warrant for a judgment of this kind. If the defendant is maintaining a nuisánce as the court found, the judgment should require it to abate the nuisance and to refrain from doing the things which resulted in the creation of the nuisance. The means whereby this end. is to be attained are in general to be chosen by the defendant. It may abate the nuisance either by ceasing to deposit waste material in the creek, by so treating it that it no *39 longer causes a nuisance, or in any other way that it sees fit. It is not for the court to choose the method by which the defendant shall proceed. A considerable search has revealed no authority for a judgment of this kind. Nor can the court permit by its judgment the deposit of waters in the creek if they contain waste matter which tends to create a nuisance, and if the water so deposited contains no such material the defendant does not have to procure a licensé from the court in order to have the right to discharge such water into the creek. The allegation of the complaint is that “said defendants have continuously during said two years wrongfully and negligently thrown and emptied into the said creek and continues to empty therein large quantities of waste, skimmed milk and refuse, which are offensive and unhealthful,” etc. The court finds “that the defendant above named has continuously during the said two years wrongfully and negligently thrown and emptied into the said creek large quantities of waste and refuse, which is unhealthful and offensive,” etc.

It is to abate the nuisance created by these wrongful and negligent acts and to restrain a continuance of such acts that the jurisdiction of the court is invoked. Under cover of abating a nuisance and restraining acts which create a nuisance the court cannot exercise a managerial power over the conduct of the defendant.

It is also contended that the amount of damages found is excessive and not warranted by the evidence. The evidence shows quite clearly that the rental value of the premises has been largely diminished during the period complained of, and the evidence, in our opinion, would have sustained a judgment for even a larger amount of damages. The judgment should have been limited to the abatement of the nuisance created by the wrongful and negligent acts of the defendant and to restraining such wrongful and negligent acts in the future. The judgment will be reversed, *40 with directions to the trial court to enter judgment as indicated in accordance with this opinion in favor of the plaintiffs and against the defendant.

By the Court. — It is so ordered. Defendant will recover • its costs in this court.