Commonwealth v. L. & N. R. R. Co.

• Decision Date: 27 April 1917
• Citation: 175 Ky. 267
• Parties: Commonwealth v. Louisville & Nashville Railroad Company.
• Court: Kentucky Court of Appeals

175 Ky. 267

Commonwealth v. Louisville & Nashville Railroad Company.

Court of Appeals of Kentucky.

Decided April 27, 1917.

Appeal from Trimble Circuit Court.

M. M. LOGAN, Attorney General; CHARLES H. MORRIS, Assistant Attorney General, and CHARLES H. SANFORD for appellant.

BENJAMIN D. WARFIELD and MOODY & BARBOUR for appellee.

OPINION OF THE COURT BY CHIEF JUSTICE SETTLE — Reversing.

In this penal action brought by the appellant, Commonwealth of Kentucky, against the appellee, Louisville & Nashville Railroad Company, in the Trimble circuit court, the latter was charged with the statutory offense of unlawfully emptying into the Little Kentucky River, a running stream, near Sulphur Station in Henry county, "liquid ammonia and other deleterious and deadly substances, in such great quantities that the said liquid ammonia and other deadly substances were carried by said stream of water into Trimble county, from which ammonia and other substances, fish were sickened, intoxicated and killed in Trimble county and the waters of said stream were thereby rendered unfit for use in Trimble county, Kentucky; against the peace of the Commonwealth of Kentucky."

By the prayer of the petition judgment was asked against appellee for the statutory penalty of $100.00.

The recovery was sought under the provisions of section 1253, Kentucky Statutes. Although appellee entered in the court below a motion to quash the return on the summons executed upon it on the grounds that its line of railroad does not enter Trimble county, and that it has neither an office nor agent therein; as it does not appear that the court took any action upon the motion or was asked to do so, the presumption will be indulged that it was withdrawn or waived by the appellee. After making the motion, it did, however, file a general and special demurrer to the petition which the circuit court sustained; and, in addition, dismissed the petition. An exception was taken by the Commonwealth to each of these rulings and this appeal is prosecuted by it from the judgment manifesting them.

As appellee's demurrer assailed the jurisdiction of the court as well as the sufficiency of the petition, and the petition states a cause of action under the provisions of the statute, supra, we assume that it was sustained by the court solely on the ground of a want of jurisdiction and such is the view expressed in the brief of the Assistant Attorney General. We think it clear that the circuit court of Trimble county had jurisdiction. While the deleterious substances which polluted the running stream are alleged to have been thrown by appellee into the stream at a point in Henry county, it is alleged that the same stream runs into and through Trimble county and that the pollution of its waters caused by the deleterious substances, extended into and existed in Trimble county, rendering the water unfit for use and causing the death of great quantities of fish therein.

In 29 Cyc., p. 1281, it is said:

"The jurisdiction of courts in prosecutions or penal actions for public nuisances is governed by the statute and judicial system of the state where the prosecution is brought. The prosecution may be in the county in which the nuisance is committed, or the...