Green v. Lake ( 1882 )

Campbell, C. J.,

delivered the opinion of the court.

The ordinance of the city of Aberdeen declaring certain establishments, which become dangerous to person or property in their vicinity, to be nuisances, and liable to be proceeded against according to the ordinances" of the city, is free from all legal objection, and the petition of the appellant averring that the steam mill of the appellee is-dangerous to persons and property in its vicinity, because of its condition as set forth, and is therefore a nuisance, which he seeks to have judicially ascertained and declared to be such, and abated, should not have been dismissed. The demurrer should have been overruled, and the facts inquired into, if controverted by the defendant. The charter of Aberdeen confers on it power to “ prevent and remove all nuisances.” We agree with counsel in the assertion that this grant of power does not authorize the town to declare that to be a nuisance which is not, and destroy property or interfere with individual rights improperly under the pretence of preventing or removing nuisances ; but the town has the power to prevent and remove what comes within the legal notion of a nuisance, and, according to the petition in this case, the establishment complained of was a nuisance, because of its condition and surroundings.

The complaint, if denied, should be investigated, and the controversy determined accoi’ding to the facts developed.

Judgment reversed, the demurrer to the petition is overruled, and cause remanded to the Circuit Court for further proceedings.