Christ v. Kusterer

Upon deliberate consideration, we are all of opinion that the evidence in this case is too vague and conflicting to warrant any decree designed to settle the rights brought in •controversy by the parties.

The case is one in which a jury would be much better ■qualified than a court of last resort, to pass upon the facts. *356They could view the neighborhood, and from the light thus obtained, place a better estimate upon the verbal testimony than it is possible for us to do with nothing but the record to guide us. The necessity for referring such facts to a jury, in nuisance cases, as is frequently done, is no greater than exists here.

We think the decree below should be so modified as that the dismissal of the bill, with costs to defendants, shall be without prejudice to any proceedings at law the complainants may be advised to take, or to any equitable proceeding based upon any verdict given in their favor. The defendant will recover costs in this court.