City of New Albany v. Slider
| Decision Date | 10 January 1899 |
| Docket Number | 2,696 |
| Citation | 52 N.E. 626,21 Ind.App. 392 |
| Parties | CITY OF NEW ALBANY v. SLIDER |
| Court | Indiana Appellate Court |
From the Floyd Circuit Court.
Affirmed.
George H. Hester, for appellant.
Kelso & Kelso, for appellee.
In appellee's complaint he alleges that he is the owner and, with his family, is in possession, of a house and lot in the city of New Albany, as a residence; that the city has caused to be deposited large quantities of garbage, rubbish and filth, gathered off its public ways near to the premises of appellee, thereby creating a nuisance consisting of a huge pile of decomposed and decaying vegetable and animal matter, from which noxious vapors, disagreeable and unhealthy odors are generated and emitted, whereby the air in and about the premises of appellee was impregnated, injuring appellee's health, and causing him and his family to become diseased and sick, destroying the comfortable enjoyment of said premises, and greatly depreciating the value thereof, to appellee's damage. The sufficiency of the complaint is questioned by the first and second assignments of error.
It is argued that, in the collection of garbage and removing it from its streets and alleys, the city was exercising the authority conferred upon it by the legislature; that in exercising such powers the city stood in the place of the State; and that, as the State assumes no responsibility in the discharge of its governmental duties, the city, as a branch department of the State, likewise assumes no liability in the discharge of such duties. This argument resolves itself into the question whether a city can create an actionable nuisance. Our statute defining special causes of action says: "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, is a nuisance, and the subject of an action." Section 290, Burns' R. S. 1894 (289, Horner's R. S. 1897). "Such action may be brought by any person whose property is injuriously affected, or whose personal enjoyment is lessened by the nuisance." Section 291, Burns' R. S. 1894 (290, Horner's R. S. 1897). The rule seems to be well recognized that a municipal corporation is liable for torts, the same as an individual, in certain classes of cases, among which are included nuisances. Thus in 2 Addison Torts (Dudley & Baylies' ed.), p. 1315, it is said: "A municipal corporation has no more right to maintain a nuisance than an individual would have, and for a nuisance maintained upon its property, the same liability attaches against a city, as to an individual." This rule was recognized as correct in Haag v. Board, etc., 60 Ind. 511. See 2 Hilliard Torts, (4th ed.), 387, 388; Stein v. City of Lafayette, 6 Ind.App. 414, 33 N.E. 912; City of Valparaiso v. Moffitt, 12 Ind.App. 250, 39 N.E. 909.
It is further argued that the complaint is defective because it seeks private redress for a public nuisance. It may be true, the complaint describes a public nuisance, but it also contains allegations showing special injury to appellee. The statute in such cases gives any one where property is injuriously affected, or where personal enjoyment is lessened, a right of action. The averments of the complaint as set out above are sufficiently full to show an injury personal to appellee. A public nuisance may become a private nuisance by inflicting upon a particular individual some special or peculiar damage.
The third error assigned is overruling appellant's motion for judgment on the interrogatories notwithstanding the general verdict. The fact that, as shown by the answers to the interrogatories, the city committed the acts complained of in an effort to keep its streets clean for the benefit of the public, does not destroy appellee's right to redress because he is one of the public for whose benefit the work was done. Cleaning the city's streets may have been a proper exercise of power delegated by the State to the municipality, but, under the authorities above cited, this did not give it the right to create a nuisance. A city has exclusive power over streets within the corporate limits, and the cleaning of its streets, when duly exercised, cannot be controlled by the courts. In such work, if unavoidable injury results, no liability ensues, because the doing of what the law authorizes cannot be a nuisance so as to give a right of action. But collecting garbage and filth from the streets and depositing it in a mass upon some other street, may create a nuisance; and, if it does, the city must respond in damages.
It is further argued that the answers to the interrogatories...
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