G. & H. Cattle Co. v. Com.

• Decision Date: 24 February 1950
• Citation: 227 S.W.2d 420,312 Ky. 315
• Court: United States State Supreme Court — District of Kentucky
• Parties: G. & H. CATTLE CO. v. COMMONWEALTH.

Page 420

227 S.W.2d 420

312 Ky. 315

G. & H. CATTLE CO. v. COMMONWEALTH.

Court of Appeals of Kentucky.

Feb. 24, 1950.

Hazelrigg & Cox, Frankfort, R. Vincent Goodlett, Frankfort, for appellant.

A. E. Funk, Atty. Gen., Zeb A. Stewart, Asst. Atty. Gen., James F. Thomas, Commonwealth's Atty., New Castle, Ollie J. Bowen, County Atty., Lawrenceburg, for appellee.

SIMS, Chief Justice.

The G. & H. Cattle Company, a corporation, and R. L. Colter, its officer in charge of its operations in feeding cattle in Anderson County, were jointly indicted for committing a common nuisance. The court directed a verdict in favor of Colter but let the case go to the jury as to the Company and it was convicted and fined $2,500. The Company made a motion in this court for an appeal and has assigned five errors in seeking to reverse the judgment: 1. The demurrer should have been sustained to the indictment; 2. the instructions were erroneous; 3. a verdict should have been directed in its favor; 4. incompetent testimony was admitted; 5. misconduct of the Commonwealth Attorney.

The indictment charged the accused 'on the 1st, 3rd, 6th, 13th, 14th, 17th and 21st days of November, 1947, and on divers days thereafter, habitually and continuously during the period from and after said dates, within twelve months before the finding of this indictment * * * did unlawfully and wilfully suffer and permit filth and refuse, manure, offal and filth, from several hundred cattle then on their premises (here follows description of the land) to drain into Salt River' and pollute its waters and make them unfit for domestic uses and purposes to the discomfort and annoyance of people residing in the heighborhood and to endanged and joepardize the health of those residing in Lawrenceburg and using city water.

As we understand, the criticism of the indictment is that it did not charge continuing and habitual wrongful acts on the part of accused. Even a cursory reading of the portion of the indictment just quoted refutes the argument and clearly shows it charges a continuity of the acts averred to be a nuisance. The mere fact that the acts complained of did not follow each consecutive day, does not prevent them from being continuous in the eyes of the law where the acts continued through the month with only two or three days intervening between each act. In Com. v. Kentucky Distilleries & Warehouse Co., 154 Ky. 787, 159 S.W. 570, 571, an indictment for a common nuisance was held to be good where it charged the offense was committed on Dec. 10, 1910, 'and on divers days thereafter, habitually and continuously * * *.'

The same criticism is made of the instruction that was made of the indictment, that there was a lack of continuity in the acts submitted to the jury. We have just seen that the indictment charged a continuity of acts and as the instruction followed the indictment, it submitted to the jury's determination whether or not there was a continuity of the objectionable acts on the part of the accused.

In determining whether or not a verdict should have been directed in favor of the Company it is necessary to state briefly the facts proved. During the month of November 1947, the Company through its Vice-president, Colter, fed hay and grain to 1,900 cattle in a feed-lot of about 30 acres. This lot was located on a plateau some quarter of a mile from Salt River. There were three feeding pens in the lot, each of which was surfaced with concrete and there were ditches leading from the pens and lot which drained the urine and manure dropped by the cattle into a large basin or pond. There was a pump in this basin which ran almost continuously and pumped its contents therefrom into eight other basins to prevent it from overflowing. These nine ponds or basins had an aggregate capacity of nineteen million gallons, while the droppings from the cattle in a period of a year were estimated at from ten to twelve million gallons.

There was a little ravine or natural drain from basin No. 1 which lead 300 or 400 yards to the river. From the point it entered the river to the intake at the pumping station of the Lawrenceburg Water Plant is approximately three miles. To increase the amount of water in the river the city used three dams, one of which is located at its pumping station and the other two are between it and the drain leading into the river near the feed-lot. The first dam is eight feet high and is located about one and a half miles below the feed-lot, while the second dam is something like a mile below the first and the same distance from the third dam. These dams are of importance in this case because the water flowing over the first two will be aerated before it reaches the intake at the Water Plant.

Allen Hanks, Paul Simpson and Vernon Shelton testified they went up the river to the mouth of the drain on several different days between November 3rd and 21st, 1947, and saw a little stream of urine and manure some 18 or 20 inches wide and two inches deep running down the drain into the river....