Dissenting Opinion.
Howard, C. J.I regret that I am unable to agree in the result reached by the majority of the court in this case.
In the admirable opinion delivered on the first hearing of the case by Elliott, C. J., then a member of this court (29 N. E. Rep. 1073), the validity of our statute regulating the liquor traffic was fully and clearly demonstrated, as it is, also, in the majority opinion of the court at the present hearing. Yet the able counsel for appellants has insisted, and still insists, that the question at issue is not the constitutionality of the statute in so far as it provides for regulating the sale of intoxicating liquors, but its constitutionality in respect to its provisions for licensing the sale of intoxicating liquors in saloons.
“If the act of the Legislature,” says counsel, “contained no other provisions than such as assume control, regulation and restriction upon the sale of intoxicating liquors, I should readily concede its validity. It is not the control over this subject and business to which I of*58fer objections. My objections are made to the license, the authority and the sanction, given by the act to the person, the place, and the conduct of the saloon business.”
With all deference to the learned counsel, it would seem that he here attempts to make a distinction where there is no difference. If the control and regulation of the liquor traffic are in the hands of the Legislature, that body must certainly be the judge as to the best means to secure such control and regulation; and it is, consequently, competent for the Legislature to determine, as it has done, that the license system is the most just, efficient and satisfactory means to attain the end in view.
This policy is the one adopted. The Legislature has, in effect, decided that the best policy for the regulation of the sale of intoxicating liquors, is the license system, that by such system the traffic can best be controlled, regulated, and restricted.
Counsel himself concedes "that a statutory law providing a license system for saloons existed at the time when our present State constitution took effect, in 1851.” There is no question that such system has been practically in operation ever since.
That the regulation of the liquor traffic, therefore, is entrusted to the Legislature, and that the policy adopted by the Legislature in the exercise of the power thus confided is the license system, seem to admit of no controversy.
Counsel, however, goes still further, and says that selling intoxicating liquors in a saloon is immoral, and that the act licensing such sale must, for that reason, be unconstitutional, inasmuch as the constitution provides for the promotion of morality. In answer to this, it would seem that if the regulation of the sale of intoxicating liquors is a trust confided to the legislative de*59partment of the government, then the sale itself can not be immoral. And if the Legislature, in the exercise of its sound discretion, is of opinion that the saloon license system is the best means of controlling and regulating such sale, it would also seem that the sale in a saloon, in the manner prescribed by law, can not be immoral.
Because some saloons are not conducted in the mode which the law directs, it does not follow that a saloon which is properly conducted is also an immoral institution. Such a conclusion would amount to an admission that the Legislature could not so regulate the sale of intoxicating liquors as to make such sale lawful, notwithstanding the admission already made that the Legislature has the power to control such sale.
It would seem to follow that the regulation and restriction of the liquor traffic must be a question of policy, and not, properly speaking, a question of morals; and that, as such, it is confided to the good judgment of the Legislature of the State. So far as the courts are concerned, to quote from the License Tax Cases, 5 Wall. 462, "The court can know nothing of public policy except from the constitution and the laws.”
Counsel asks that the damage feature involved in this case to the appellants, caused by the establishment of a saloon beside their home, be not overlooked by the court. This consideration, though but thus incidentally referred to, and not at all argued by counsel, I regard as the strongest that could be urged in appellants’ favor. It has frequently been held that locality is often an important element in determining whether a business is or is not a nuisance.
In Owen v. Phillips, 73 Ind. 284, the doctrine was approved in its fullest extent, "That in some localities a business will be considered a nuisance, while it would not be so in others.”
*60The fact that the business conducted by appellees is a lawful one, does not affect the question. No matter how good one’s title to property; no matter how lawful the business in which he is engaged, he must so use his property and conduct his business as to cause no unnecessary injury to the property, rights, or interests of others. The reason for this rule, as well as the rule itself, are comprehensively stated by Judge Ray, formerly of this court, in his work on Negligence of Imposed Duties, p. 152: “It is the injury, annoyance, inconvenience, and discomfort thus occasioned that the law regards, not the particular business, trade or occupation from which these result. A lawful, as well as unlawful, business may be carried on in a place or in a manner so as to prove a nuisance.”
The complaint shows the location of a saloon beside a home in a thickly settled residence part of the city, near, also, to schools and churches, and far from the business center. It also shows conspicuous advertising signs on the building, side and alley entrances, and that persons have been continuously going in there to buy and drink intoxicating liquors, and are so seen going in and coming out by the public. It avers a consequent diminution of the value of appellants’ property and annoyance to appellants in the enjoyment of their home.
To this, appellees answered by setting up their liquor license issued by the board of county commissioners, and the conduct of the business by athority of and in pursuance of such license.
Had appellants put their argument in support of their demurrer to this answer upon the ground that such license did not authorize the acts complained of, some case might perhaps have been made in favor of sustaining such demurrer. But instead of this, appellants’ contention is based upon the assumption that the an*61swer is insufficient to constitute a defense, for the reason that ‘ ‘the law pretending to authorize the same is unconstitutional and void.” And the whole argument of counsel, instead of being addressed to the insufficiency of the answer as a defense to the acts complained of, is directed against the license law itself.
Counsel says, expressly, that “The point at issue here is the validity of the act so far as its license features are concerned. If the law in that respect is valid, then the defense, as set up in the respective answers of the appellees, is complete.”
I must disagree with counsel’s reasoning in this. The license granted by the county commissioners gave no right to appellees to keep a disorderly place, where intoxicating liquors are sold, as prohibited by section 2097, R. S. 1881, and gave them no right to unnecessarily injure their neighbors’ property, rights, and interests. For, while the business of selling intoxicating liquors, under a license duly issued, is lawful; yet, as we have seen, “A lawful, as well as unlawful, business, maybe carried'', on in a place or in a manner so as to prove a nuisance.”
Appellants, in basing their argument upon the alleged'' unconstitutionality of the law, instead of upon the insufficiency of the answer as a defense to the alleged unlawful acts of appellees, abandoned, as I think, their only reasonable grounds of action. Whether the acts complained of were in fact sufficient to constitute appellees’ place of selling intoxicating liquors a disorderly house or a nuisance, need not, as 1 think, be considered, since appellants, in their argument, chose to waive that question, and to rely wholly upon the alleged unconstitutionality of the license system. Having adopted a theory, they should be held to abide by it.
It has often been decided that every case must proceed upon a definite theory. Parties can not adopt one *62theory in the trial court and a different theory in the appellate court.
I think that we must, therefore, assume, since the record shows nothing to the contrary, that appellants’ contention in support of the demurrer to the answer was the same in the trial court as it is here, to wit, that the law licensing saloons is unconstitutional and void; and I think we must also assume that the trial court ruled upon the demurrer on that theory solely, holding against appellants that the law is constitutional; and, further, that the court did not otherwise rule, nor intend to rule, upon the question as to whether the answer constituted a sufficient defense to the acts complained of.
Courts are not called upon to decide questions not presented and argued by the parties; nor is it, as I think, equitable between the parties, nor just to the court trying the case, to reverse its decision upon a theory different from that on which the cause was tried, and different, likewise, from that on which the case is presented on appeal.
This principle is very fully developed in chapter 24 of Elliott’s App. Proced. In section 489 of that work, it is said that “Parties must stand by the positions assumed in the trial court and upon which they asked and obtained rulings. The same rulings are to be reviewed and not different ones.” And, in section 494, “If the parties put a definite construction upon the pleadings in the trial court and induce the court to act upon that construction, they must adhere to it on appeal * * *.
Pleadings will be treated on appeal as the parties elected to treat them in the trial court.”
If, then, the parties in this case, in arguing the demurrer to the answer, and the court, in ruling upon that demurrer, proceeded upon the theory that appellants demurred for the reason that the answer was insufficient *63as being based upon an unconstitutional law, I do not think we should now pass upon that ruling of the court by assuming a different theory. Indeed, counsel does not ask this. He does not ask to have the demurrer sustained for any reason but because the license law is invalid, and says, emphatically, that “if the law in that respect is valid, then the defense, as set up in the respective answers of the appellees, is complete.”
In addition to the express waiver so made, the failure of counsel to argue, in his briefs, any question in the case but the validity and constitutionality of the license law, is, by the settled decisions of this court, a waiver of all other objections to the answer.
“It is essential,” says Judge Elliott, in his App. Proced., section 444, “that all points be made in the brief, and properly made; if not so made, they are waived. Many cases affirm this doctrine.”
As early as the case of Bates v. Bulla, 6 Ind. 36, the court ruled that “All points not made by brief may be treated as waived.”
In the case of Donovan v. Stewart, 15 Ind. 493, it was said: “We are inclined to think that the points in the case, if any such exist, are not shown by the brief filed by the three attorneys, whose names are signed thereto, and are consequently waived.”
In Burk v. Hill, 55 Ind. 419, the court said: “The sufficiency of the second paragraph of complaint is questioned by an assignment of error, but the question is not discussed in the briefs of the parties — indeed, it seems to be waived. We therefore dispose of it at once by holding the paragraph good.”
In Martin Sr., v. Martin, 74 Ind. 207, it was said, by Woods, J., “that the rules of practice are the law of the land;” “that we have no right to disregard them;” and that following these rules, on appeal, “we *64never go beyond the brief of the appellant to search the record in quest of errors which have not been pointed out in the brief; but the appellee, without filing any brief at all, is entitled to the benefit of everything in the record which may prevent a reversal of the judgment upon the errors assigned.”
In Western Union Tel. Co. v. Ferris, 103 Ind. 91, the statement is, “As this question was not suggested in the original brief and argument of appellants’ counsel, nor until after the brief for appellee had been filed and the case taken up for consideration by the court, we think it might well be regarded as waived.”
In the Louisville, etc., R. W. Co. v. Grantham, 104 Ind. 353, the court said: “In this court the appellant has assigned a number of errors, but of these only one is noticed even by its learned counsel in his brief of this cause. * * * Of course, under the settled practice of this court, the other errors assigned by appellant, but not discussed by its counsel, are regarded here as waived, and are not considered. Goldsberry v. State, ex rel., 69 Ind. 430; Williams v. Potter, 72 Ind. 354; Coffin v. Trustees, etc., 92 Ind. 337.”
In Carr v. State, 135 Ind. 1, objection was made in the court below to certain offered evidence. This court found the questions, by which the evidence was sought, to be informal; but held that, as the objection to the evidence was sustained with express reference to the subject-matter, and not to the form of the questions, and as no objection was made in this court to the form of the questions, the correctness of the ruling should be determined as if no such informality had existed. That was the theory upon which the court ruled below, and that was also the theory upon which argument was had in this court.
See, also, Kimberlin v. Tow, Trustee, etc., 133 Ind. 696; *65Funk, Guar., v. Rentchler, 134 Ind. 68; Thompson v. McCorkle, 136 Ind. 484; also, Works’ Prac., section 1099, and authorities there collected. s
Whether, therefore, the demurrer in the case at bar should be sustained by reason of the insufficiency of the answer as a defense to the alleged acts complained of by appellants, and their demand for relief therefrom by injunction, or for any other reason than the alleged invalidity of the license law, is a question which has been waived by the failure of counsel to discuss the same, and, as I think, should not be considered.
The license law being valid, we must presume, until the contrary is shown, that appellees’ business, being lawful in itself, was conducted in a lawful manner, that they did only what they had a right to do with theirjown.
In Barnard v. Bherley, 135 Ind. 547, it was said: “No principle of law is better settled than that a man has a right to the lawful use and enjoyment of his own property, and that if, in the enjoyment of such right, without negligence or malice, an inconvenience or loss occurs to his neighbor, it is a wrong for which there is no liability. This must be so or every man would be at the mercy of his neighbor in the use and enjoyment of his own.”
It is true that there are certain well known exceptions to this general rule; but until it is shown that some such exception applies, or that negligence or malice in the conduct of the business exists, or the law is otherwise violated, the owner will not be disturbed in the use and enjoyment of his property.
In the case before us there is no unlawful act charged. According to the complaint, the appellee, Stehlin, established a saloon, and engaged in the business of selling intoxicating liquors, to be drunk on the premises; he *66advertised his business by putting up printed signs, and provided different entrances to his building; persons have ever since been invited and received into said premises to buy from him and drink intoxicating liquors, and meet together there for that purpose, and are seen by the public going in and coming out.
That is the sum and substance of what is charged against appellees; and it is acknowledged in the complaint that the appellees claim that they are authorized to do these things by virtue of a license, duly issued by the board of county commissioners.
Appellees themselves answered this complaint by setting up their license, and averring that the business has been conducted in pursuance of such license. The truth of this answer is not denied, but, on the contrary, by the demurrer it is admitted to be true. No negligence or' malice is charged, no violation of the liquor law, or of, any other law of the State, is alleged.
We are brought, then, to the conclusion, according to the opinion of the majority of the court, that a lawful' business, carried on in a lawful manner, is yet a nuisance; that a man, setting up on his own land a business made lawful by the statutes of the State, and conducting this business in a peaceful and quiet manner, without any wrongdoing on his part, whatever, may yet be assessed damages because his neighbor’s property is incidentally-lessened in value. I do not think this is the law.
If a modest mechanic’s shop, or a small and plain house, the best he can afford, is set upon a little lot of his beside a splendid mansion, in a fashionable part of a city, it will undoubtedly lessen the value of the fine property adjacent. Can the owner of the marble palace and the beautiful lawns and pleasure grounds therefore collect damages from the mechanic who has set himself *67down before the great man’s door? Not in England, where every man’s home is his castle; still more, not in free America, where all men are equal.
And if, as follows from the decision of the court in this case, a man may collect damages because the value of his property is lessened by the lawful business in which his neighbor engages, why may not a merchant bring suit against the man who sets up another lawful business next door, which may, perchance, lessen the popular favor which the merchant has heretofore enjoyed?
It is hardly necessary to further intimate the mischievous results which must, as I think, inevitably flow from thus practically, and that, too, without any legislative sanction, engrafting so definite a feature of local option upon our license system. If the people desire local option, and the constitution and the laws are so framed as to sanction it, it seems to me it will then be time enough for the courts to do so.
If there were any improper conduct, any violation of the law, any boisterousness or noise, anything injurious to health, or offensive to the senses, charged against appellees, I could see some reason for declaring the place a nuisance; and I do not think that the authorities show that a business so conducted can be found a nuisance, simply because the presence of even a properly conducted saloon is offensive, and because adjacent property is incidentally lessened in value.
In St. James Church v. Arrington, 36 Ala. 546, 76 Am. D. 332, the court held that a private nuisance would be abated only when the matter complained of is a nuisance per se, or when it has been declared a nuisance by law; and, hence, that the erection of a private stable near a church building would not be enjoined, a stable not being unavoidably and of itself a nuisance.
*68In 3 Stockton’s Chancery, 204 (N. J.), 66 Am. D. 790, it was held that an injunction to prevent the erection of a building for manufacturing purposes, on the ground of its being a nuisance to an adjoining dwelling house, would not be granted, unless a very strong case should be made, and one which is marked by some very peculiar features. To the same effect was Van Bergen v. Van Bergen, 3 Johns. Ch. 282, 8 Am. D. 511, decided by Chancellor Kent.
In State v. Hall, 32 N. J. Law, 158, the Supreme Court of New Jersey held that a ten pin alley, kept for public use in a village, even though kept in connection with a lager beer saloon, is not, per se, a nuisance.
In Pfingst v. Senn, 23 S. W. Rep. 358, it was claimed by neighboring residents, that certain premises were to be re-opened, which had before been used as a pleasure resort garden, with ten pins, dancing and band music till early morning, where the noise would keep the neighbors awake to the detriment of their health and comfort, and where crowds of idle, disorderly persons were attracted and became a nuisance in the streets; that all this was not due to the management, but inhered in the business. The court of appeals, of Kentucky, held that a nuisance was not clearly made out.
In the course of the opinion the court said: “Nor are the things about to be done in themselves nuisances. There can be beer gardens, and pleasure resorts, music, and dancing, and yet no nuisance set up. Admittedly, the conduct of such exercises, or the running of such a business may result in inconvenience and annoyance to neighbors not participating. It may render the location less eligible as a place of residence for people who pay high rents, and are of ‘dainty modes and habits of living’ (Wood Nuis., section 800); but, nevertheless, these places and modes of amusement are not to be condemned *69or denounced as nuisances in themselves. * * * One living in a city, it was said (in Louisville Coffin Co. v. Warren, 78 Ky. 400), must necessarily submit to the annoyances which are incidental to city life. In Rhodes v. Dunbar, 57 Pa. St. 274, it was well said by the learned chief justice: ‘It is a difficult matter at all times to strike the true medium between the conflicting interests and tastes of people in a densely populated city.’ ”
These cases, and many others, go very much farther than it would be necessary to go in this case in order to hold that the business of appellees, as conducted by them, is not a nuisance, and that they are not liable for damages because the adjacent property has been rendered less valuable without any fault on their part.
I may say, besides, that were this an appeal from a judgment based upon an order of the board of county commissioners, renewing or refusing to renew a license to appellees in the locality where the acts complained of were done, the case, as I think, would be a stronger one for appellants than is the case before us, which is, in some respects, a collateral attack upon the order of the board granting the license.
I have no doubt, as already intimated, that the question of locality is one which the board of county commissioners, or the court on appeal, ought to take into consideration in determining the fitness or unfitness of an applicant for a license to conduct a saloon. The statute itself, section 5314, R. S. 1881, seems to imply as much.
In Eslinger v. East, 100 Ind. 434, objection was made to the introduction of certain evidence showing where the building in which license was applied for was situate, with reference to a public square and to a college and a graded school, and how many school children usually passed the building in going to and returning *70from school. This court approved a ruling admitting the evidence. Judge Mitchell, speaking for the court, after alluding to the requirement of the statute, that the applicant for license should state in his notice “the precise location of the premises in which he desires to sell, ’ ’ said, that while the inquiry must always be as to the fitness of the applicant to be entrusted with the sale of intoxicating liquor, yet “it may well have been supposed [by the Legislature] that in determining the fitness of things, a court or jury might take into account whether, under all the evidence, an applicant in a particular case was a fit person to be entrusted with the sale of intoxicating liquors, if the place proposed was such that only a man possessed of an extraordinary degree of circumspection and caution could fitly conduct the business at that place, with a due regard to the situation and surroundings.”
That, however, was an appeal from the action of the board of county commissioners as to granting a license in the first place. Here there is an attack on the authority of the license after it is duly granted.
Besides, in this case, there is no question of the fitness of the appellee to keep a saloon. His character and fitness are not even called in question. It is the saloon! itself, as a saloon simply, and a properly conducted' saloon, that is objected to.
And here we return to the real question at issue. This saloon is objected to, not that it is in any way improperly carried on, but simply because it is a saloon, and because the law authorizing it is unconstitutional and void.’ All other questions are waived by appellants, in their argument, and, by the rules of this court, should not, as I think, be considered.
The waiver, too, is not an implied one, simply, but is am express waiver. And counsel candidly gives us his *71reason for the waiver, saying: “If this were the only saloon in Indiana, located as it is, I dare say there would be little difficulty in suppressing it; but, as it is a part of a great system, we are compelled to attack the system.”
Appellants thus seek to uphold their demurrer to the answer setting up the license, on the sole ground ‘ 'that such license is no defense, because the law pretending to authorize the same is unconstitutional and void.”
It does not seem to me. that we are justified in ignoring the positions taken by the parties before the lower court and in their appeal to this court. If there was error on the trial, that error should be presented here by the party appealing. We can not reverse a judgment for a reason that the lower court had no opportunity to pass upon.
Appellants’ briefs show that the invalidity of the liquor law was the question presented to the lower court. The briefs also show that to be the question presented to this court. ■ Shall we then do what Woods, J., in Martin, Sr., v. Martin, supra, said the courts would never do, “go beyond the brief of the appellant to search the record in quest of errors which have not been pointed out in the brief?” I think that we should not, and that the appellees are themselves, “entitled to the benefit of everything in the record which may prevent a reversal of the judgment.”
By the decision of the majority of the court, it would seem as if this rule was to be changed, and that hereafter the burden would be upon the appellee to show that the record was without error, rather than upon the appellant to point out the error, if any there should be.
To me, however, the long established rule seems the fair one to be applied in this case, fair to the parties and *72fair to the court below, which could only pass upon the questions presented to it for consideration and decision.
Filed Dec. 14, 1893.The theory of appellants’ complaint and of appellees’ answer, the theory recognized in the trial court and urged in the briefs in this court, bears wholly upon the constitutionality of the liquor license law.
I am, therefore, of opinion, without even considering the fact that this saloon is properly conducted according to law, and is not a nuisance in itself, that the demurrer was properly overruled, and that the judgment ought consequently to be affirmed.
Hackney, J. — I concur in the dissenting opinion of Howard, C. J.