ACME Fertilizer Co. v. State

• Decision Date: 03 January 1905
• Docket Number: No.5,144.,5,144.
• Citation: 34 Ind.App. 346,72 N.E. 1037
• Parties: ACME FERTILIZER CO. v. STATE.
• Court: Indiana Appellate Court

34 Ind.App. 346

72 N.E. 1037

ACME FERTILIZER CO.

v.STATE.

No.5,144.

Appellate Court of Indiana, Division No. 2.

Jan. 3, 1905.

Appeal from Circuit Court, Gibson County; O. M. Welborn, Judge.

Action by the state against the Acme Fertilizer Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

L. C. Embree and Luther Benson, for appellant. C. W. Miller, Atty. Gen., W. C. Geake, C. C. Hadley, and L. G. Rothschild, for the State.

ROBY, J.

This is an appeal from a judgment of the Gibson circuit court imposing a fine of $100 and the costs of the suit upon the appellant for maintaining a nuisance in the operation of a factory for the manufacture of products of merchandise from the bodies of dead animals. The prosecution was upon affidavit and information. The information was in three counts. Motions to quash were sustained as to the first count, and overruled as to the second and third. The appellant was found guilty upon the third count.

The first question for decision arises upon the action of the court in overruling the motion to quash the second count. So far as essential to the decision, it was as follows: “That the Acme Fertilizer Company, a corporation, on the 10th day of February, 1903, and at divers other times since said day, at Gibson county, state of Indiana, did unlawfully erect, continue, use, and maintain a public nuisance, to the injury of many of the citizens of the state of Indiana, by erecting and maintaining near the dwelling houses and homes of divers citizens of said county a building known as the ‘Acme Fertilizer Plant,’ situate on the following described real estate in Gibson county, in the state of Indiana, to wit [specific description omitted], in and about which the said Acme Fertilizer Company did manufacture products from the bodies of dead animals, and at the same times and place aforesaid the said Acme Fertilizer Company did carry on, and cause and procure to be carried on, the business of manufacturing products from the bodies of dead animals then and there by it collected, and did then and there and thereby wrongfully and unlawfully create and suffer to escape said building, into the open air, divers noisome, offensive, unwholesome, and poisonous smells, so that the air for a great distance in every direction about said building was thereby impregnated with said smells, and rendered noisome, offensive, unwholesome, and noxious, and injurious to the health, comfort, and property of many of the citizens of the state of Indiana residing in the neighborhood of said building, and where the air was so impregnated with said smells as aforesaid.” If the acts charged amount to a public nuisance, the information was sufficient. “Anything which is ‘an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life and property by an entire community or neighborhood, or any considerable number of persons,’ is a pubic nuisance.” State v. Ohio Oil Co., 150 Ind. 37, 49 N. E. 814, 47 L. R. A. 627. “A nuisance is literally an annoyance, and signifies, in law, such a use of property or such a course of conduct as, irrespective of actual trespass against others, or of malicious or actual criminal intent, transgresses the just restrictions upon use or conduct which the proximity of other persons or property in civilized communities imposes upon what would otherwise be rightful freedom.” 21 Amer. & Eng. Ency. Law, 682. “Our statute, perhaps, gives as accurate a definition of the term ‘nuisance,’ as understood at common law, as can be found elsewhere: ‘Whatever is injurious to health, or indecent or offensive to the senses, or an obstruction to the free use of property, so as essentially to interfere with the comfortable enjoyment of life or property.’ Section 290, Burns' Ann. St. 1901. If the injury was limited to an individual, it gave a private right of action. If it affected the public it was the subject of a public prosecution.” State v. Taylor, 29 Ind. 517. “Every person who shall erect or continue and maintain any public nuisance to the injury of any part of the citizens of this state shall be fined not exceeding one hundred dollars.” Section 2153, Burns' Ann. St. 1901. Corporations may be prosecuted by indictment or information for erecting, continuing, or maintaining a public nuisance. Section 1970, Burns' Ann. St. 1901; State v. Sullivan, etc., 14 Ind. App. 369, 42 N. E. 963;Paragon Paper Co. v. State (Ind. App.) 49 N. E. 600. A standard text-writer, after defining public nuisances strictly as those resulting from the violation of public rights, and producing no special injury to one more than another of the people, and private nuisances as injuries resulting from the violation of private rights, producing damages to but one or a few persons, as in the building of a house with the eaves projecting over the land of another, says: “There is a class of acts...