Acme Fertilizer Company v. State

• Decision Date: 03 January 1905
• Docket Number: 5,144
• Citation: 72 N.E. 1037,34 Ind.App. 346
• Parties: ACME FERTILIZER COMPANY v. THE STATE
• Court: Indiana Appellate Court

72 N.E. 1037

34 Ind.App. 346

ACME FERTILIZER COMPANY v. THE STATE

No. 5,144

Court of Appeals of Indiana

January 3, 1905

From Gibson Circuit Court; O. M. Welborn, Judge.

Prosecution by the State of Indiana against the Acme Fertilizer Company for maintaining a public nuisance. From a judgment of guilty and assessing a fine of $ 100, the defendant appeals.

Affirmed.

Lucius C. Embree and Luther Benson, for appellant.

C. W Miller, Attorney-General, C. C. Hadley, L. G. Rothschild and Wm. C. Geake, for the State.

OPINION

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 third 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 building 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 from 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."

1. 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 public nuisance." State v. Ohio Oil Co. (1898), 150 Ind. 21, 37, 47 L. R. A. 627, 49 N.E. 809. "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 Am. and Eng. Ency. Law (2d ed.), p. 682.

2. "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.' 2 G. & H. § 628, p. 288. [§ 290 Burns 1901, § 289 R. S. 1881.] If the injury were 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 (1868), 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 $ 100." § 2153 Burns 1901, § 2065 R. S. 1881. "Corporations may be prosecuted by indictment or information, for erecting, continuing or maintaining a public nuisance." § 1970 Burns 1901, § 1897 R. S. 1881; State v. Sullivan County, etc., Soc. (1896), 14 Ind.App. 369, 42 N.E. 963; Paragon Paper Co. v. State (1898), 19 Ind.App. 314, 49 N.E. 600.

3. 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 which may properly be denominated mixed nuisances, being both public and private in their effects; public in that they produce injury to many persons or all the public; and private because at the same time they produce a special and particular injury to private rights, which subjects the wrongdoer to indictment by the public and to damages at the suit of persons injured. Of this class are * * * establishments which, by reason of the nature of the business carried on, produce such noxious smells and vapors as to annoy the whole community,...