(dissenting in part). I must respectfully dissent from that part of the court’s opinion and mandate which affirms the dismissal of the city of Wauwatosa’s counterclaim for abatement of a public nuisance.
It is apparent from a reading of the learned trial court’s memorandum opinion that he possessed a misconception of what constitutes a public nuisance as applied to the fact situation present in the instant appeal, and that such mistake of law materially affected the determination reached as to the nuisance issue.
Sec. 5.075 of the code of the city of Wauwatosa prohibits the discharge or emission into the atmosphere within the corporate limits of the city of Wauwatosa, and within one mile therefrom, of any sand, dust, dirt, ground limestone, or ground sandstone as the result of a commercial or industrial operation in such volume and with such frequency as to result *286in a noticeable and measurable deposit of such substance upon adjacent or neighboring improved real estate in any area where the density of population exceeds fifty (.50) persons per square mile. The ordinance provides a penalty or forfeiture against the owner or person in charge of such operation and specifically declares the act of discharging such sand, dust, dirt, ground limestone, or ground sandstone into the atmosphere a public nuisance and subject to abatement in the manner provided by law. Such ordinance was in effect for more than eight months prior to the date of the commencement of plaintiffs’ action.
There can be no doubt that a city in this state is empowered to enact such an ordinance by the provisions of-sec. 62.11 (5), Stats. Such statute expressly confers the power to enact ordinances for the protection of the “health, safety, and welfare of the public.” As early as 1878 the United States supreme court in Northwestern Fertilizing Co. v. Hyde Park (1878), 97 U. S. 659, 2.4 L. Ed. 1036, held that the police power of a municipality extends to declaring something to be a nuisance which affects public health. For further authorities on the right of a municipality to declare certain acts or conditions to be a public nuisance, see Sullivan v. Los Angeles (1953), 116 Cal. App. (2d) 807, 254 Pac. (2d) 590; Rowe v. Pocatello (1950), 70 Idaho, 343, 218 Pac. (2d) 695; 6 McQuillin, Mun. Corp. (3d ed.), p. 578, sec. 24.63.
The learned trial court, in its memorandum opinion, took the position that, in the absence of such ordinance, the number of people discommoded by the emission of dust from the quarry was too few in proportion to the total population of the city of Wauwatosa to permit of a finding of public nuisance. In so holding, the trial court gave no consideration to the effect of sec. 5.075 of the Wauwatosa city ordinances. This ordinance rendered such issue of the proportion of total city residents affected by the nuisance *287wholly immaterial on the question of whether a public nuisance existed. Furthermore, even at common law, the trial court applied too restrictive a test as to this element of a public nuisance. If an entire neighborhood is adversely affected, this is sufficient to constitute a public nuisance, assuming the other elements of nuisance to be established. 39 Am. Jur., Nuisances, p. 288, sec. 10, and 66 C. J. S., Nuisances, p. 732, sec. 2, note 53.
While there was considerable conflict in the testimony as to the adverse effects upon the surrounding neighborhood as a result of the blasting incident to the quarry’s operation, this is not true with respect to evidence relating to the emission of sufficient dust to result in a noticeable and measurable deposit upon neighborhood residential property.
The testimony showed that in dry weather when the wind was blowing, the entire neighborhood downwind from the quarry would be covered and clouded with fine limestone dust which accumulated on vegetation, windows, screens, roofs, eaves and gutters, lawn furniture, and other places on the exterior of the houses. Housewives and others who testified described the substantial amount of dust which filtered into houses even with windows and doors closed producing considerable discomfort during the hot weather. Several women testified to the necessity for dusting and cleaning as much as two and three times a day to try to keep the dust under control. It was claimed by witnesses that at times the dust hung in clouds over the quarry so that persons on one side could not see the homes on the other side of the quarry. Children were described as coming in from play during dust periods with their eyes watering and smarting. One woman who testified described a pre-existing arrested case of tuberculosis and claimed that the conditions were aggravating her physical difficulties.
Question 2; (a) of the special verdict submitted to the jury read as follows: .: : . • :
*288“Question 2: During a substantial portion of the period since January 1, 1950, was there
“ (a) an unreasonable emission of noise, dust, broken rock, and blasting vibrations from the quarry premises, to territory in the vicinity and now in the city of Wauwatosa, from the operation of the quarry in question?”
The jury answered such question “No” and the trial court adopted such finding in its memorandum opinion. It will be noted that the conjunction “and” instead of “or” was used in joining together the alleged harmful activities of unreasonable emission of noise, dust, broken rock, and blasting vibra-, tions. As a result of this if the jury were satisfied that there was an unreasonable emission of dust but not of noise, broken rock, and blasting vibrations, they might well have concluded that a “No” answer was required. This aspect of the verdict is not commented upon in the trial court’s memorandum opinion.
The majority opinion stresses the fact that the quarry was in operation before the surrounding area developed into a residential neighborhood. This is not a controlling consideration according to the weight of authority. 39 Am. Jur., Nuisances, p. 327, sec. 44, states:
“The fact that a business was established in the open country remote from habitations will not defeat a proceeding for the maintenance of a nuisance after the land in its vicinity has been built up and occupied; such business must give way to the rights of the public and when building and habitations approach the place of its location means must be devised to avoid the nuisance, or it must be removed or stopped.” See also Hadacheck v. Los Angeles (1915), 239 U. S. 394, 410, 36 Sup. Ct. 143, 60 L. Ed. 348; Brede v. Minnesota Crushed Stone Co. (1919), 143 Minn. 374, 173 N. W. 805, 6 A. L. R. 1092; and Collins v. Sargent (1928), 89 Cal. App. 107, 264 Pac. 776.
While, therefore, not material, except as to the equities of the parties, it might be mentioned that the Hartung family *288aencouraged the development of a residential area in the neighborhood of the quarry by selling off part of their land for such purpose. Furthermore, such development of the surrounding lands into a residential area had already largely taken place when the plaintiffs Hartung leased the quarry to the plaintiff Wauwatosa Stone Company in 1949. There is scarcely any comparison between the harmful effects of the quarry operation prior to such leasing and those which occurred thereafter. This is because production after the leasing was stepped up approximately fourfold. For example, in 1949 only 33,420 cubic yards of stone were extracted from the quarry, while in 1955 production had grown to 137,976 cubic yards.
Because of the errors of law committed by the trial court in passing upon the nuisance issue, that part of the judgment which dismissed Wauwatosa’s counterclaim should be reversed, and the cause remanded for a new trial as to such counterclaim.
I am authorized to state that Mr. Justice Wingert and Mr. Justice Fairchild concur in this dissenting opinion.