there may be of necessity some noise from the proposed enterprise; but it must be borne in mind that what might be considered out of place and quite unbearable in a rural community or a country hamlet can hardly be so regarded in a busy city."

And, in Nevins v. McGavock (1925) 214 Ala. 93, 106 So. 597, the court refused to restrain the construction of a proposed two-story public garage in a residential district, the benefits from the garage (in which repairs to cars were not contemplated, but only service with gas and oil, cleaning and washing cars, and matters of that character) to the public at large preponderating over the anticipated nuisance to those seeking injunctive relief. The court took the view that a public garage may be so operated that its objectionable features may be eradicated, or at least reduced to such a degree that its operation will not unduly annoy or inconvenience those who reside in the vicinity.

And in a suit to enjoin the establishment of a public supply station for automobiles on a lot near residential property, the court stated that public garages and supply stations are essential, and that the establishment of such public conveniences, even in residential sections of cities and towns, has been held not to be a nuisance per se. Hanes v. Carolina Cadillac Co. (1918) 176 N. C. 350, 97 S. E. 162.

In True v. McAlpine (1924) 81 N. H. 314, 125 Atl. 680, the court held that there was no statute or specific rule of the common law forbidding the defendants from engaging in the business of storing automobiles in the residential part of the city, but, although the defendants might lawfully erect the proposed garage and engage in the business of storing automobiles, they must do what the ordinary man would do to carry it on in such a way that it would not unreasonably disturb their neighbors. The court was of the opinion that the test was whether an ordinary man would erect such a garage in such a community, as any act the ordinary man would do would be reasonable, and the query was answered in the affirmative.

And in Wolfschlager v. Applebaum (1921) 213 Mich. 180, 182 N. W. 47, it was held that the proposed use of a building as an automobile paint and trimming shop, located in a residential zone, was not per se a nuisance, and the lessees of such building should be allowed to carry on the proposed business, as the question of whether such a business becomes a nuisance in fact could only be determined after operation, it being possible, perhaps, for the business to be so conducted as not to create a nuisance.

And in Stein v. Lyon (1904) 91 App. Div. 593, 87 N. Y. Supp. 125, it was held that the construction and maintenance of a garage along the boulevard at a fashionable watering resort, in a neighborhood occupied by highclass summer residences, did not constitute a common-law nuisance. The garage was constructed just outside of a residential section burdened with building restrictions.

In Lansing v. Perry (1921) 216 Mich. 23, 184 N. W. 473, it was held that a building for the showing and sale of new cars and such service as was incident to the sale of cars, no gasolene to be sold at the place, which building was proposed to be erected on a street subjected to heavy traffic, such as freight cars, street cars, etc., and as to which there were no building restrictions, was not a nuisance per se, and the proposed business would not constitute a nuisance.

And in Bourgeois v. Miller (1918) 89 N. J. Eq. 285, 104 Atl. 383, the court refused to enjoin the construction and operation of a public garage and filling station in a section occupied by near-by hotels, the dangers incident to the operation of such a business being purely problematical and almost negligible, thanks to the modern efficient methods of handling gasolene in automobiles and garages. A public garage, said the court, is not, of and in itself, a menace to contiguous life and property, and whether it is a nuisance in fact depends upon the manner in which it is kept and the business is conducted.

In Diocese of Trenton v. Toman (1908) 74 N. J. Eq. 702, 70 Atl. 606,

the facts failed to show that a public garage erected near a children's nursery and a business house was so conducted as to constitute a nuisance, although there was some evidence from one of the nurses in charge of the nursery that they were bothered by gases and noises from machines entering and leaving the garage from an alleyway contiguous to the garage and nursery.

In Wasilewski v. Biedrzycki (1923) 180 Wis. 633, 192 N. W. 989, it was held that a public garage in a business district, proposed to be so operated that it would not annoy or inconvenience persons of ordinary sensibilities, would not constitute a nuisance, and an injunction to restrain the operation of such a garage would not be granted; in such a case a court of

equity will act "only where it clearly appears that a nuisance will necessarily result from the contemplated act or thing which it is sought to enjoin."

In O'Hara v. Nelson (1906) 71 N. J. Eq. 161, 63 Atl. 836, evidence of noise, odor, and danger incidental to the operation of a garage and gasolene tank was held insufficient to entitle complainants to an injunction. But see (1906) 71 N. J. Eq. 629, 63 Atl. 842, in which a final injunction was issued restraining the proprietors of the garrage from introducing gasolene into the tanks of the automobiles inside of the garage, and from storing automobiles with gasolene in their tanks inside of the building, which was a frame one, lighted on the inside by gaslights, and in which persons were allowed to smoke. R. P. D.

50 A.L.R.-8.

Statement by Owen, J.:

The parties to this action are religious societies of the Lutheran faith, each duly incorporated as a religious corporation under the laws of this state. The defendant was incorporated in 1865, and on January 1, 1925, owned property of the value of $75,000 and had a membership of about 400 communicants. The plaintiff was incorporated in 1909, and on January 1, 1925, owned property of the approximate value of $30,000, subject to an incumbrance of something less than $6,000, and had a membership of less than 100 communicants. Both churches are located in the city of Milwaukee.

In the year 1916 some negotiations were had between these two societies looking towards a union of the two churches and their congregations, without, however, reaching any agreement in that respect. Early in the year 1925 negotiations of a similar character were renewed. Committees from each society were appointed for the purpose of conferring, considering, and reporting to each society a plan by which the two churches might be united. These committees met, deliberated, and, finally agreed upon a plan, which is referred to in the record as the "six points" or "Bestimmungen." These six points are as follows:

"1. The St. Thomas church joins as a whole the St. Matthews church, transfers its property to the St. Matthews church, which latter takes over all rights and obligations of the hitherto St. Thomas church. Both churches together then form the St. Matthews church.

"2. Both pastors, Pastor Bendler as well as Pastor Kionka, remain the pastors of the thus united St. Matthews church and the pastors shall preach in both churches by turns. The pastor of the hitherto Matthews church shall be regarded as first pastor.

"3. The hitherto St. Thomas church shall be called 'Matthew Church West.'

"4. The belonging to the one or the other circle shall be optional with the individual member; but where a person goes to Holy Communion there he shall be enrolled as member and there also shall he pay his dues.

"5. The thus united church elects the church board and all perchance necessary assistants.

"6. All other particulars and other provisions in the work of the Kingdom of God in the united St. Matthews church are left to later determination of the church as a whole."

These "six points" were ratified and approved at duly and regularly called meetings of each respective church. The plaintiff executed to the defendant a deed of its church property, and a joint meeting of the congregations of the two churches was held at the defendant's church October 5, 1925. At this meeting was presented a list of the communicants of the plaintiff's church, containing seventy-eight

names.

These names were read to the meeting, and the persons thus named were voted into membership by the defendant congregation. However, only twenty-four or twenty-five of the persons whose names were so read were present at the meeting, and there is no evidence to show that those who did not appear ever consented to becoming members of the defendant congregation. According to the ninth finding of fact made by the trial court it appears: "That immediately after procuring a deed of the plaintiff's property, the defendant's board of trustees and its other officers took possession and assumed control of plaintiff's property, and that since said time they have been and now are in possession of the plaintiff's church edifice, together with all its contents; that no further official or other action was taken for the purpose of perfecting the consolidation of the plaintiff and defendant societies; that misunderstandings at once arose between Reverend Kionka and Reverend Bendler, the pastors of the

plaintiff and defendant; that the defendant assumed absolute control and dominion over both pulpits; that on the 23d of November, 1925, a meeting of the communicants of the plaintiff was held for the purpose of protesting against the treatment that had been accorded Reverend Kionka, and for the purpose of proceeding no farther in the matter of the attempted consolidation, and for the purpose of considering steps for the return of the plaintiff's property; that at said time written resolutions were adopted and then and immediately thereafter were assented to in writing by seventy-seven of the plaintiff's voting communicants, expressing their dissatisfaction with the attempted consolidation and protesting against the treatment which had been accorded to Reverend Kionka, and that they withdrew their assent to the consolidation, and demanded from the defendant the return to the plaintiff of its property; that a committee was duly appointed to present these demands to the defendant's governing board, which denied the requests and cited Reverend Kionka to appear for the purpose of explaining his conduct in having participated in the meeting of the 23d of November, and having thus stirred up a spirit of rebellion amongst his supporters; that upon his refusal, he was cited to appear before the defendant congregation to show cause why he should not be deposed from further occupying his pulpit; that on the 14th day of December, 1925, at a meeting of the defendant congregation which he attended and in which he protested against the right and jurisdiction of the defendant to place him on trial, he was ordered deposed, and was thereafter served with a notice to vacate the parsonage by him occupied."

It is not pretended that in the proceedings leading up to a union of these two churches there was any compliance or attempted compliance with § 187.14 of the Statutes, which section provides a method for

the consolidation of church corporations. It also appears and the court found that the defendant has expended no money in the upkeep and maintenance of the church property. conveyed to it by the plaintiff.

This action was brought by the plaintiff for the purpose of having said conveyance declared void, for a cancellation of the deed and a reconveyance of the property. From a judgment rendered in favor of the plaintiff, the defendant appeals. Messrs. Houghton, Neelen, & Houghton, for appellant:

The rules of law to be applied in dealing with corporations organized for religious purposes are the same as those applying to any other corporations.

Fadness v. Braunborg, 73 Wis. 257, 41 N. W. 84; 23 R. C. L. § 31, p. 458; 2 Wait, Act. & Def. p. 254; 1 Fletcher, Cyc. Corp. § 63.

Religious societies organized under the laws of Wisconsin are authorized to transfer or convey their properties.

33 R. C. L. 437; Lutheran Trifoldighed Congregation v. St. Paul's English E. L. Congregation, 159 Wis. 56, 150 N. W. 190.

A court of equity will not set aside a deed on the ground of inadequate consideration, in the absence of a finding of fraud.

Cooper v. Reilly, 90 Wis. 427, 63 N. W. 885; Doxtater v. Connell, 93 Wis. 113, 66 N. W. 1135.

There can be no relief in equity for a mistake of law made by one party to the transaction, where there is no fraud or mistake on the part of the other.

Van Valkenburg v. Jantz, 161 Wis. 336, 154 N. W. 373; 2 Pom. Eq. Jur. 2d ed. § 841; Kyle v. Fehley, 81 Wis. 67, 29 Am. St. Rep. 866, 51 N. W. 257; Dolvin v. American Harrow Co. 28 L.R.A. (N.S.) 785 and note, 125 Ga. 699, 54 S. E. 706; Badger State Lumber Co. v. G. W. Jones Lumber Co. 140 Wis. 73, 121 N. W. 933; 10 R. C. L. 310; Lutheran v. Trifoldighed Congregation v. St. Paul's English E. L. Congregation, supra.

Plaintiff is estopped to question the validity of its own deed.

21 C. J. 1067; Walterman v. Norwalk, 145 Wis. 663, 130 N. W. 479, Ann. Cas. 1912A, 1176; 8 R. C. L. 961, § 35; Trafton v. Hawes, 102 Mass. 533, 3

Am. Rep. 494; Chambers v. Chambers, 227 Mo. 262, 137 Am. St. Rep. 567, 127 S. W. 86; Brown v. Whaley, 58 Ohio St. 654, 65 Am. St. Rep. 793, 49 N. E. 479; Eastman v. Parkinson, 133 Wis. 375, 13 L.R.A. (N.S.) 921, 113 N. W. 649.

Messrs. H. O. Wolfe and Walter A. John, for respondent:

Prior to the year 1919, the declared policy of the state did not permit either a consolidation, merger, union of two religious corporations.

or

Evenson v. Ellingson, 67 Wis. 634, 31 N. W. 342, 72 Wis. 242, 39 N. W. 330; Fadness v. Braunborg, 73 Wis. 257, 41 N. W. 84; Franke v. Mann, 106 Wis. 118, 48 L.R.A. 856, 81 N. W. 1014; Fletcher, Cyc. Corp. § 4670; Union Indemnity Co. v. Railroad Commission, 187 Wis. 528, 205 N. W. 492.

There can be no consolidation of corporations unless authorized by law. If there is such authorization, then the manner provided by law must be followed. When there is no law in the territory where certain transactions occurred, authorizing the consolidation of corporations, the fact that any of the parties may have designated the acts done as a consolidation could have no legal effect.

Overstreet v. Citizens Bank, 12 Okla. 383, 72 Pac. 379; Bergeron v. Hobbs, 96 Wis. 641, 65 Am. St. Rep. 85, 71 N. W. 1056; Slocum v. Head, 105 Wis. 431, 50 L.R.A. 324, 81 N. W. 673; McLennan v. Hopkins, 2 Kan. App. 260, 41 Pac. 1061; Kulinski v. Dambrowski, 29 Wis. 109; Blackstone v. Chandler, Del. Ch., 130 Atl. 34.

An attempted merger cannot be justified on the theory of being a sale.

Re De Camp Glass Casket Co. (C. C. A. 6th) 272 Fed. 558; Murrin v. Archibald Consol. Coal Co. 232 N. Y. 541, 134 N. E. 563; Knapp v. Supreme Commandery, U. O. G. C. 121 Tenn. 212, 118 S. W. 391; Madison Ave. Baptist Church v. Baptist Church, 46 N. Y.

131.

Though the transaction was ultra vires and fully executed, the court had the power to relieve the parties from their dilemma and to adjust the equities between them.

Dunning v. Leavitt, 85 N. Y. 30, 39 Am. Rep. 617; Central Transp. Co. v. Pullman's Palace Car Co. 139 U. S. 24, 35 L. ed. 55, 11 Sup. Ct. Rep. 478; Pratt v. Short, 79 N. Y. 437, 35 Am.

Rep. 531; Chevra Bnai Israel v. Chevra Bikur Cholim, 24 Misc. 189, 52 N. Y. Supp. 712; Madison Ave. Baptist Church v. Baptist Church, 46 N. Y. 131, 73 N. Y. 82; Erste Sokolower Congregation V. First United Royatiner Sokolower Verein, 32 Misc. 269, 66 N. Y. Supp. 356; 21 C. J. p. 1067, 25; Erickson v. Wiper, 33 N. D. 193, 157 N. W. 592.

Equity will grant relief arising out of a mixed mistake of law and fact, or from a pure mistake in law, where gross injustice would otherwise result.

10 R. C. L. 311; Reggio v. Warren, 207 Mass. 525, 32 L.R.A. (N.S.) 340, 93 N. E. 805, 20 Ann. Cas. 1244; Kerr, Fraud & Mistake, 4th ed. 467.

Owen, J., delivered the opinion of the court:

The deed executed by the plaintiff to the defendant was not executed pursuant to an agreement of purchase and sale, and the question. whether the plaintiff church had power to sell and dispose of its property for a valuable consideration is not here presented. The dominant purpose sought to be accomplished was not a mere transfer of the church property, but a union of the two church societies or congregations into one. The transfer of the church property was but an incident in the accomplishment of that dominant purpose. If

ties-consolida

there was a failure Religions sociein the accomplish- tion-failurement of that dom- deed. inant object, then

cancelation of