City of Monticello v. Rankin
| Decision Date | 21 March 1975 |
| Parties | CITY OF MONTICELLO, Kentucky, etc., Appellants. v. Howard RANKIN et al., Appellees. |
| Court | United States State Supreme Court — District of Kentucky |
Bruce H. Phillips, Monticello, for appellants.
James M. Frazer, Monticello, for appellees.
Appellant, City of Monticello, Kentucky, erected a sewage treatment plant in 1964. Appellees are property owners and residents of an area near the plant. Appellees sought injunctive relief against the continued operation of the plant. They alleged that the operation of the plant constituted a nuisance because it emitted very offensive odors and interfered with appellees' quiet use and enjoyment of their homes and adjacent premises.
In November 1971, the chancellor filed his findings of fact and conclusions of law in accordance with which he entered judgment directing abatement of the nuisance caused by operation of the sewage treatment plant. The judgment gave the city until June 1972 to take corrective measures to abate the nuisance. The judgment further directed that if the nuisance was not abated the continued operation of the sewage disposal plant was enjoined.
The appellant-city appealed the judgment on the bases that the appellees-property owners had no standing to enjoin an operation that constituted a public nuisance and that the trial court abused its authority because the operation involved a governmental function . We affirm the judgment.
Although the city would have us accept its version of the conflicting evidence, it appears that the findings of fact made by the trial judge were supported by substantial evidence. They are, therefore, binding on appeal. CR 52. The trial court found that the complaining property owners were obstructed in the use and enjoyment of their homes by obnoxious and offensive odors which emanated from the sewage disposal plant. A number of high school students and school officials of the Wayne County High School, which is located close to the plant, testified that the odor was 'offensive,' 'unbearable,' and 'pretty repulsive.'
The trial judge also found from the evidence, including the testimony of the consulting engineer who designed the plant, that a sewage disposal plant properly constructed and properly maintained would not create offensive odors. The trial court also found that the city had done nothing about the situation and had shown a total lack of concern except for making a cursory investigation in 1967 followed by no effective action to alleviate the conditions.
The city argues that a private individual may not maintain an action to abate a public nuisance by injunction. It has frequently been written that a private individual has no action for the invasion of the purely public right, unless his damage is in some way to be distinguished from that sustained by other members of the general public. It is also generally recognized, however, that where there is any substantial interference with the plaintiff's use and enjoyment of his own land, this makes the nuisance a private as well as a public one, and since the plaintiff does not lose his right as a land owner merely because others suffer damage of the same kind, or even of the same degree, there is general agreement that he may proceed upon either theory, or upon both. Prosser, Handbook of The Law of Torts, Sec. 88, 588--589 (Fourth Edition, 1971). In Bartman v. Shobe, Ky.,353 S.W.2d 550, 555 (1962), we said: 'No one would deny, for example, that a shaking of the earth or a diffusion of revolting odors can be just as offensive and destructive of property values as a stream of water, and an equally effective invasion of the offended party's property rights.'
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