¶1 (dissenting) — Respondents, with the apparent purpose of securing a permanent home, purchased property abutting Lake Ballinger in Snohomish county. The lake is only a few miles outside of the corporate limits of the city of Seattle. Certain covenants mentioned by the majority opinion were contained in the deed secured by the parties to this action, and were placed there for the undoubted purpose of protecting each owner in the quiet enjoyment of his home. The evidence introduced on the part of respondents, which the court evidently believed, may be summarized as follows:
¶2 Appellants maintained on their property a chicken coop, a pig sty, a cow barn, and a rabbitry. The chicken coop, built close to respondents’ bedroom and about sixty feet from their kitchen door, was “filthy.” The pig sty in which five hogs were kept for a period of three years, and which emitted a “vile stench,” was built over a small creek which flowed over respondents’ property and then into Lake Ballinger. Mrs. Granger testified:
“The pig pen is still there, I can’t smell it at this time. At the time the hogs were there, the odor was very strong. *602 Standing on the front porch, the odor was so strong it would make you sick.”
¶3 At one time when appellants butchered stock on their premises, they threw the entrails into the pig pen and allowed them to remain there for about two weeks. One side of the cow barn was covered with manure, and the rabbitry sent out an unpleasant smell. The cows at times spent the night about fifteen feet from respondents’ bedroom. At times the chewing of the cuds could be heard “all through the night.” Appellants “had five or six batches of roosters one right after another.” These fowls, of course, made much noise at unwelcome times.
¶4 I cannot understand how the majority, with this evidence before it, can modify the decree of the trial court. The modification of the decree allows appellants to maintain on their property flocks of chickens, bands of sheep, herds of cows and horses, and numerous rabbits. Their only restriction will be in housing livestock.
¶5 The clause in the deed should be construed so as to carry out the real intent in the deed, and that was to give to the owners peace and security in their home.
¶6 It is my opinion that this decree should be affirmed even if the restrictive clause was not in the deed.
¶7 (concurring) — I concur in the majority opinion, but, in view of what I believe is the import of the dissenting opinion of the chief justice, I desire to express the view that the restriction, as I read it, prohibits the erection or maintenance of any buildings other than a private residence or dwelling and necessary outbuildings for residence uses, but goes no further. It does not prevent the appellants from making use of their property for other lawful purposes. If the keeping of fowls and animals on the premises is offensive to respondents and has become a nuisance, then their remedy is to secure an abatement of the nuisance rather than to claim for the restrictive clause a construction that would so limit the use of the premises that the fowls and *603 animals could not be allowed or pastured thereon for any purpose.
¶8 As pointed out in the majority opinion, the cause of action based upon a claim of nuisance on account of the presence of the fowls' and animals on the premises was dismissed by the trial court, and no cross-appeal having been taken by the respondents, that question is not before this court.