Clendenin v. Pickett , 1912 Ind. App. LEXIS 111 ( 1912 )

Lairy, J.

— Appellee sued appellant in tbe Wayne Circuit Court and obtained a decree enjoining appellant from maintaining on bis land a fertilizer plant, alleged to constitute a private nuisance. Appellee also obtained a judgment for $150 damages. Tbe only error assigned and argued on appeal is tbe action of the trial court in overruling appellant’s demurrer to tbe complaint.

1. Tbe only objection urged against tbe complaint is that the facts averred do not show that tbe offensive odors and stenches created by appellant in tbe conduct of his business were of such a character as essentially and materially to obstruct tbe use of appellee’s property, or such as essentially to interfere with bis comfortable enjoyment of tbe same, within tbe meaning of our statute on tbe subject of nuisances. Tbe sections bearing on this subject, being §§291-293 Burns 1908, §§289-291 R. S. 1881, are as follows: Section 291. “Whatever is injurious to health, or indecent, or offensive to tbe senses, or an obstruction to the free use of property, so as essentially to interfere with tbe comfortable enjoyment of life or property, is a nuisance, and tbe subject of an action.” Section 292. “Such action may be brought by any person whose property is injuriously affected, or whose personal enjoyment is lessened by the nuisance.” Section 293. “Where a proper case is made, tbe nuisance may be enjoined or abated, and damages recovered therefor.”

Without setting out tbe complaint at length, it is sufficient to state that it alleges, in substance, that defendant erected buildings on bis land, within twenty-five rods of plaintiff’s residence, and that be collected in and about said buildings the carcasses of animals, which were there steamed, boiled and submitted to other processes, whereby unwholesome, noxious, disagreeable and offensive gases and odors were given off, and that the air which surrounded and permeated plaintiff’s dwelling-house was at all times laden with these unwholesome, injurious and noxious gases and odors. The complaint further avers: The plaintiff and his family have been then and there and thereby at all times, and still are greatly annoyed, injured and incommoded in the use, possession, occupation and enjoyment of said dwelling house and premises, and the peace, comfort and happiness of the plaintiff and his family disturbed and destroyed, and the said dwelling house of plaintiff and his real estate and premises greatly depreciated in rental value, and damaged and rendered -unfit and unsuitable for occupation or use.”

2.

The demurrer admits the troth of all facts well pleaded. Simply to call attention to the averments of the complaint is sufficient to demonstrate the fallacy of appellant’s contention. The complaint is clearly good.

The judgment of the trial court is affirmed.

Note. — Reported in 99 N. E. 530. See, also, under (1) 29 Cyc. 1241; (2) 31 Cyc. 333. As to the nature and elements of private nuisance, see 118 Am. St. 869.