Green v. Board of Com'rs of Scott County
| Decision Date | 07 January 1969 |
| Docket Number | No. 967S93,967S93 |
| Citation | 251 Ind. 535,242 N.E.2d 844 |
| Parties | Arlie GREEN, Charles Stoll, Thomas Fields, William A. Sharpe, Ernest Parks, Dudley Gay, Frances Gay, and Myrtle Parmenter and others, Appellants, v. The BOARD OF COMMISSIONERS OF the COUNTY OF SCOTT, Appellees. |
| Court | Indiana Supreme Court |
John Ready O'Connor, William Prime, Madison, for appellants.
Lealand West, Scottsburg, for appellees.
This appeal is taken from an interlocutory order entered by the trial court denying appellants a Temporary Injunction.
From the record it appears that on December 22, 1966, appellants as plaintiffs filed in the Scott Circuit Court of Scott County, Indiana, a petition seeking a temporary restraining order and a temporary injunction restraining the defendant and others from operating and using a certain county dump or landfill until the final hearing and determination of such cause and that upon such final hearing said injunction he made permanent. The petition alleged that the appellee purchased certain land, therein described, for the erection, construction, etc., of a dump or landfill, and which would be used as an incinerator for burning garbage, trash and refuse hauled to said location by appellees and others. It stated that appellants were the owners of land adjoining the real estate described in said petition, and that the operation of the dump would be injurious to them because the burning of garbage, trash and refuse would create obnoxious odors which would pervade the areas adjacent thereto including all the properties of the plaintiffs. It alleged that the offensive odors would deprive the plaintiffs-appellants of the enjoyment of their properties and depreciate the values thereof. Finally, the petition alleged that appellants had not been given sufficient notice of the creation of the dump.
Appellants' request for a restraining order preventing appellee from operating the county dump was granted by the trial court on December 24, 1966.
Thereafter, on March 20, 1967, appellees filed their verified Motion to Dissolve Temporary Restraining Order, such motion, omitting heading, formal parts, signature and jurat, in pertinent part reads as follows, to-wit:
'Defendants move the court to dissolve the Restraining Order heretofore entered and rendered against them in this cause for the reasons following, to-wit:
'1. That the Sanitary Landfill now owned by Scott County is operated for the use and benefit of all the citizens of Scott County.
2. The Sanitary Landfill is a means to improve the sanitary conditions of Scott County, being recommended by the Departments of Health and Sanitation of the State of Indiana.
3. The method disposing of garbage, trash and refuse by means of a Sanitary Landfill has been and is a means to combat the problem of air pollution now a big problem before the Departments of Health and Sanitation. By the method of disposing of garbage, trash and refuse in a Sanitary Landfill there is no burning to produce smoke or stench to pollute the air or to produce any obnoxious odors of any nature.
Paragraph (4) in Petition for Injunction petitioners allege that said Landfill will be used as an incinerator for burning garbage, trash and refuse, and your Defendants would show to the court that in the operation of a Landfill there is no burning of any nature or at anytime. Wherefore your defendants deny the allegations in paragraph (4) and (5) of Plaintiff's petition.
4. Furthermore petitioners had ample time and knowledge of the construction of the Landfill and made no objections until land was purchased and operations in effect.
5. The Restraining Order is depriving the citizens of Scott County of a Sanitary method of disposing of their trash and refuse as prescribed by the Department of Health and Sanitation.
6. It is the desire and intentions of The Board of Commissioners of The County of Scott to properly operate said Landfill and to comply with the standards of The Department of Health and Sanitation in said operation.
WHEREFORE, The Board of Commissioners of The County of Scott now pray an order of The Scott Circuit Court dissolving the present Temporary Restraining Order, issued by the Scott Circuit Court 24 day of December, 1966.'
Thereafter, on April 7, 1967, appellants filed a motion for change of venue from the county, such motion was granted and on April 11, 1967, as a result of striking by the parties, Clark County was the county to which the cause was venued.
On August 8, 1967, the cause being at issue was submitted to the Clerk Circuit Court for trial, without the intervention of a jury. (The record discloses that the court following trial took the matter under advisement until September 6, 1967.)
Thereafter, on September 6, 1967, the court entered its judgment. The same, omitting heading and signature, reads as follows:
'This cause having been under advisement by the Court with regard to the Petition for Temporary Injunction filed herein, and the evidence heard thereon, and the Court now being sufficiently advised in the premises finds that the Petition for Temporary Injunction should be denied, and that the Restraining Order heretofore issued in this cause should be dissolved.
It is therefore considered, ordered and...
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