Bell v. Clark.

Crowell v. Kirk, the subscribing witness to a will is rather the witness of the law than of the party calling him, and therefore the party is not bound to take his testimony as true, but ought to be at liberty to contradict and discredit him. It is impossible the Legisla ture should mean, that one of the most solemn acts of a man's life should be defeated by the perjury of one man, or, indeed, any number of men; and much less by his defect of memory or of a discrimination to judge correctly of the party's strength of understanding. For as it is in respect of the fact of execution, so it must be in respect to the capacity of the party deceased, whether the defect be alleged to arise from insanity or the less permanent cause of intoxication. The jury are not confined to the opinions given by the subscribing witnesses on that point, nor to the facts on which they say they formed their opinions, but may take their judgment from other sources on which they rely more. Here the subscribing witnesses concurred in the facts, which go to make up what is called the execution; but they differed as to the degree of intoxication and of its effects on the party's mind and memory. The weight due to their respective opinions must depend on their intelligence and the opportunities they had of knowing how far the party's faculties were ordinarily overcome by intoxication, and, particularly, the actual effects at the time of executing this instrument. Perhaps the jury might well have decided as they did, on the comparison in those respects of the two witnesses. But, at all events, when they thus differed, it must have been proper to let the jury see by other means, that in fact the party had a disposing memory and knew what he was about, and that he was only fulfilling a previous promise; and that of what he did, he was so conscious and had such a perfect recollection, that he was able at different times for several years afterwards, both when sober and when drinking, to recite correctly the

Dargan v. Waddell.

provisions of the paper. It is not uncommon that subscribing witnesses should not agree entirely in opinion as to the capacity of the party deceased, or as to the facts upon which they found their opinion; and in such cases. it is certainly reasonable, that either side should show, either by collateral circumstances or by direct proof, that one of them is more credible than the other, or that one of them is mistaken in his facts and the other not. Clary v. Clary, 2 Ire. 78.

PER CURIAM.

Judgment affirmed.

ATLAS J. DARGAN vs. JAMES W. WADDILL.

A table in a town is no', like a slaughter pen or a hog style, necessarily or prima facie a nuisauce. But if it be so built, so kept, or so used, as to destroy the comfort of persons owning and occupying adjoining premises and impairing their value as places of habitation, it does thereby become a nuisance.

If the adjacent proprietors be annoyed by it in any manner, which could be avoided, it becomes an actionable nuisance, though a stable in itself be a convenient and lawful erection.

Appeal from the Superior Court of Law of Anson County, at the Fall Term, 1848, his Honor Judge PEARSON presiding.

This was in case for erecting stables so near the dwelling house of the plaintiff, as, by the noise of the horses and the smell of the litter, &c., to render the plaintiff's house uncomfortable to live in, and thereby much impair its value. The plaintiff proved that his wife, then Mrs. Bates, about the year 1839, purchased a dwelling house. and lot, situate on one of the main streets in Wadesboro',

Dergan Wadde'l.

and being the north-west corner lot, of the square immediately west of the Court House. The square, commencing on the street in front of the Court House, runs 120 yards on Wade street, and 140 yards South on Green Street, and the plaintiff's lot had a front of 40 yards on Wade Street, and extended back about 70 yards. The dwelling house, purchased by the plaintiff's wife, fronted on Wade Street, and had been erected and used for a dwelling for thirty years or more. Mrs. Bates had the house moved some five or six yards back, so as to have a small front yard; and refitted it and made some additions.

The defendant, in 1841, purchased the house and lot situate immediately opposite the Court House, and being the North-east corner lot of the square above described. It extended 40 yards on Wade Street and 70 yards on Green Street. The defendant refitted and made many additions to the house, so as to fit it for an Hotel.

The lot, between the plaintff's and the defendant's lots, which was 40 yards on Wade Street and extended back 70 yards, had several small buildings on it in front, which had been used as store-houses and shops for Mechanics, and in the rear there was a small stable, fit for one or two horses, which had been used for some fifteen years. without a plank floor. In 1841, the defendant purchased this middle lot, removed the small houses in front, with a design of using the lot by erecting a stable suitable for bis Hotel. Mrs. Bates notified the defendant of her objections to his putting stables so near her dwelling, but the defendant, notwithstanding, erected a large frame str ble at the South-west corner of the lot. fifty feet long and wide enough for two rows of stable. The stable was within three feet of the line along side of the plaintiff's garden, and near a small stable and privy of the plaintiff. The distance from the back piazza of the plaintiff's dwelling to the nearest corner of the stable was 33 yards. The balance of the lot the defendant used as a stable or horse

Dargan . Waddill.

lot, and also built upon it a small log stable fit for two horses between the large stable and the plaintiff's dwelling, the nearest corner being about 12 yards from the plaintiff's piazza, near his kitchen and smoke house.

The plaintiff married Mrs. Bates in 1841, and resided afterwards with her in the said dwelling house. The defendant's stable was completed and put in use on the 1st of March. The large stable had a plank floor, and could hold fifty horses. It was proved, that the noise. from the tramping of the horses, particularly on public occasions, could be heard by all residing on this square, and the adjoining squares night and day, and rendered the dwelling house of the plaintiff uncomfortable and disagreeable, and that Mrs. Dargan, who was a nervous lady, and in delicate health, was very much annoyed by it. Some evidence was offered tending to show, that, before the writ issued, a disagreeable smell, arising from the defendants stables, could be perceived in the house of the plaintiff in damp weather, when the wind was blow ing from the South to the house, and that, although the defendant had a privy on his other lot, many persons used the stable for that purpose. Some evidence was offered tending to show, that, before the writ issued, the defen. dant kept a stallion in the small stable, but not until the last of the summer, if at all, until after the writ issued. The witnesses considered the value of the plaintiff's house, as a dwelling, impaired by the erection of the stables so near to it.

The Court charged, that a stable, like a kitchen or a privy, being a necessary appendage to an hotel, the defendant, in the reasonable exercise of his rights, was at liberty to erect the stables, taking the evidence, as to the location of the several buildings, to be true, provided he did so in such a manner as to cause no unnecessary damage to the plaintiff. A man is not required to forego the reasonable use of his own, although by using it, he

Dargan v. Waddill.

does damage to his neighbor to some extent. It is damage absque injuria. A stable differs from a slaughter-pen, tan-yard, or hog-pen, because the latter are unnecessary and unfit for towns, and should be put in remote and outof the-way places. If the defendant, before the writ issued, by neglecting to have his stables cleansed at proper times, had suffered the filth to accumulate and become noisome, the plaintiff would be entitled to recover. the defendant had no right to use the little stable, which was so near the plaintiff's dwelling, as a stand for his stallion, and if he did so, before this writ was issued, the plaintiff would be entitled to a verdict.

So,

Verdict for defendant. Motion for new trial for error in the charge, which was refused. Judgment, and the plaintiff appealed to the Supreme Court.

Strange, for the plaintiff.

P. H. Winston and Iredell, for the defendant.

RUFFIN, C. J. It was, we think, a fair inference for the jury from the instructions, as a whole, that the defendant's stable was not a nuisance to the plaintiff, because the act of the defendant in building it was but a reasonable use of his own in erecting an useful appendage to his Hotel, and therefore the damage to the plaintiff was not unnecessary. Thus regarded, the Court does not concur in the instruction. It is true, that a stable in a town is not, like a slaughter house or a sty, necessarily and prima facie a nuisance. There must be places in towns for keeping the horses of the people living in them or resorting thither; and if they do not annoy others, they are both harmless and useful erections. But, on the contrary, if they be so built, so kept, or so used as to destroy the eomfort of persons owning and occupying adjoining premises and impair their value as places of hab. itation, stables do thereby become nuisances. They are