Argument for Appellant.

of the particular facts of any specific case and the manner and method of conducting the business at such place.

4. Where the facts of any given case show that a lawful business is being conducted in such a manner and under such circumstances as to become a private nuisance to an adjoining property owner, and an injury and damage to such property owner, and it is determined by the court that an injunction ought to be issued, such injunction should not be absolute, but ought, rather, to be a qualified injunction, unless it clearly appears that the business could not be conducted in any manner or under any circumstances at the specific place without being a nuisance to such adjoining property owner.

APPEAL from the District Court of the Eighth Judicial District, for the County of Bonner. Hon. Robert N. Dunn, Judge.

Action for perpetual injunction. Judgment for plaintiff and defendant appealed. Reversed.

E. W. Wheelan, for Appellant.

"Where a use of a property is found to be a nuisance, it is proper to allow the defendant a reasonable time to rearrange and remodel his appliances so they will not further operate as a nuisance, or to remove his plant before an injunction against the business or use is allowed to take effect." Cyc. 1250.)

(29

"Where the business or use of property alleged to be a nuisance is lawful and can be carried on without causing the injuries complained of, defendant should not be restrained. from carrying it on at all, but the injunction should go merely against carrying it on so as to prove injurious or offensive." (29 Cyc. 1248; McMenomy v. Baud, 87 Cal. 134, 26 Pac. 795.)

Irreparable injury lies at the foundation of relief in equity, which must be so great as to be incapable of compensation in damages. (Hilliard, Injunctions, 269, 270.) Equity will not relieve if the injury be doubtful, eventual or contingent. (Butler v. Rogers, 1 Stock. (N. J. Eq.) 487; Green v. Lake, 54 Miss. 540, 28 Am. Rep. 378.)

Argument for Respondent.

The injunction should be limited to such usage as created the nuisance, leaving the right to carry on the business in the proper manner. (Weaver v. Kuchler, 17 Okl. 189, 87 Pac. 600, and cases cited; Wilcox v. Henry, 35 Wash. 591, 77 Pac. 1055.)

G. H. Martin, for Respondent.

The decree of the court does not prevent the appellant from carrying on the manufacture of such meat products as do not generate smoke and foul and offensive odors, but it does interdict and prohibit such manufacturing processes as give rise to smoke and foul and offensive odors. It does not prevent the appellant from conducting its ordinary retail meat business on its premises, nor does it prohibit the appellant from doing any act in connection therewith which does not constitute a nuisance.

The fact that a person knows that a structure is being built and the purpose for which it is to be used, and makes no objection thereto, does not estop him afterward to sue to abate it as a nuisance, because of injuries arising from its use, unless he encouraged the building of the structure and the use complained of. (29 Cyc. 1231; Harley v. Merrill Brick Co., 83 Iowa, 73, 48 N. W. 1000; Huntington v. Phoenix, 40 W. Va. 711, 21 S. E. 1037; Chapman v. Rochester, 110 N. Y. 273, 6 Am. St. 366, 18 N. E. 88, 1 L. R. A. 296; Leonard v. Spencer, 108 N. Y. 338, 15 N. E. 397.)

The party-wall agreement was not recorded and Lorenzi had no notice or knowledge at the time he bought the Lorenzi building from Hunt that there was to be a rendering establishment and one for the cooking and smoking of meats maintained in the Star Market building, and he had nothing to do with the construction of the Lorenzi building and did not know how the joists of said building were put into the wall. He is not liable for any act of commission or omission on the part of his grantor. (Learned v. Castle, 78 Cal. 454, 18 Pac. 872, 21 Pac. 11; O'Brien v. St. Paul, 18 Minn. 176; Alexander v. Kerr, 2 Rawle (Pa.), 83, 19 Am. Dec. 616.)

Opinion of the Court-Ailshie, Presiding J.

Where the facts found sustain the judgment, it is immaterial that there were no findings upon some of the issues presented. (Malone v. Del Norte County, 77 Cal. 217, 19 Pac. 422; Dyer v. Brogan, 70 Cal. 136, 11 Pac. 589; Robarts v. Haley, 65 Cal. 397, 4 Pac. 385; McCourtney v. Fortune, 57 Cal. 617; Porter v. Woodward, 57 Cal. 535.)

AILSHIE, Presiding J.-This is an appeal from a judg ment and an order denying a motion for a new trial.

The action was instituted by the plaintiff to secure a perpetual injunction restraining defendant from the maintenance of a nuisance. The alleged nuisance consists in the escape of smoke and foul and offensive odors from the defendant's building, wherein it conducts a meat market and smoking and rendering establishment for smoking meats and rendering lard and making sausages, etc. The court, after hearing the proofs, granted a perpetual injunction against the defendant carrying on the business of smoking and curing meats and rendering lard in its building adjoining the plaintiff's premises.

The appellant owns a two-story brick building situated on the principal business street of the city of Sandpoint. The lower story was used as a meat market and for other purposes in connection therewith and incidental thereto. For convenience we shall refer hereafter to this building as the Star Market building. The respondent owns a two-story brick building adjoining the appellant's building on the north. We shall hereafter refer to respondent's building for convenience as the Lorenzi building. The Star Market building was not erected by the appellant, but was constructed by its grantor. The Lorenzi building was likewise erected by respondent's grantor.

The defendant and appellant filed a separate answer in which it set out certain facts charging the plaintiff with contributory negligence which it claimed was sufficient to defeat his right of recovery. Evidence was introduced on this question, but the trial court made no findings of fact touching

Opinion of the Court-Ailshie, Presiding J.

this alleged defense. The appellant now complains of the action of the trial court in failing to find on this issue. This separate defense had reference to a party-wall agreement and the action of the respective parties and their grantors under such agreement. It appears that prior to the erection of either building the proprietors of the respective lots entered into an agreement whereby the appellant's grantors, W. G. Hunt, and Mary N. Hunt, agreed to erect on the north line of their lot a party-wall for a two-story building, and that the wall should be placed on their ground and that they should own the fee therein; and that the respondent's grantors, W. F. Allbaugh, Addie E. Allbaugh, Henry Frey and Medora Frey, the owners of the adjoining lot, their successors and assigns, should have the right to use the party-wall so erected, and to connect their building therewith and should have the right to cut any necessary joist holes and chimney flues that may be deemed necessary in the construction and use of their said store building, and at all times hereafter have the full liberty, right and privilege of joining to said partywall above and below the surface of the ground, and along the whole or any part of the length of said wall, any buildings which they, or their legal representatives, or assigns may see fit or have occasion to erect. . . .

Soon after the erection of the Star Market building respondent's grantors erected the Lorenzi building, the first story of which respondent uses for the manufacture and sale of candies and confectionery and the second story for offices. It is alleged by the separate answer that respondent's grantors in the erection of the Lorenzi building "negligently and carelessly placed the joists of the said building directly opposite the joists entering said wall" from the Star Market building, "and in placing the joists in said wall the openings chiseled in said wall to place the joists therein were not closed after placing the joists therein, but large openings were left in said wall around the joists."

It is further alleged that "any inconvenience or annoyance caused to the plaintiff in this action by smoke or odors produced by defendant on defendant's premises were caused or

Opinion of the Court-Ailshie, Presiding J.

are caused by reason of the faulty construction of the plaintiff's building where the building of the plaintiff is connected with the building of the defendant, etc."

It is further alleged that plaintiff's grantors knew at the time of the erection of the Lorenzi building of the use to which the Star Market building was to be applied, and that they were chargeable with notice that the occupants of the Star Market building would smoke and cure meats and manufacture sausages and render lard in this building.

A demurrer to this separate answer was filed, but does not appear to have ever been passed on by the trial court. The trial was had, apparently, on the theory that the demurrer had been, or would be, overruled. At least, the case was tried on the theory that this separate answer was in the case and formed an issue. It is claimed that this party-wall agreement was not a matter of record, and that respondent was accordingly not chargeable with notice of its terms and conditions. So long, however, as the respondent, who was the grantee and successor in interest of the party who entered into the party-wall agreement, used this party-wall and claimed the benefits and advantages of the party-wall agreement, he would be chargeable with notice of the terms of the agreement, whether it was or was not a matter of record. was chargeable with actual notice that the party-wall was not on his ground, but was on the ground belonging to appellant. So long as he took advantage of the terms of that agreement and used the party-wall, he was put on notice of the terms of the agreement. In other words, he was chargeable with notice that such an agreement must necessarily exist, and this information would put him on inquiry as to the terms and conditions of that agreement.

He

It is further contended, however, that since the respondent did not erect the Lorenzi building, he could not be chargeable with contributory negligence for the action of his grantors in cutting joist holes through the wall which resulted in letting the offensive smoke and odors escape from the Star Market building into his building. He purchased the building, and so long as he availed himself of the benefits of the