Hedrick v. Tubbs, 18020

• Decision Date: 22 May 1950
• Docket Number: No. 18020,18020
• Citation: 92 N.E.2d 561,120 Ind.App. 326
• Parties: HEDRICK et al. v. TUBBS et al.
• Court: Indiana Appellate Court

Page 561

92 N.E.2d 561

120 Ind.App. 326

HEDRICK et al. v. TUBBS et al.

No. 18020.

Appellate Court of Indiana, in Banc.

May 22, 1950.

McClure, Shenk & Ellis, Lloyd McClure, George B. Shenk, G. Richard Ellis, Kokomo, Paul Haywood, Bloomfield, for appellants.

Darrel L. Hodson, Kokomo, for appellees.

WILTROUT, Judge.

Appellees sought an injunction against appellants for the purpose of enjoining a nuisance. It was adjudged that appellants 'be, and they are, hereby perpetually enjoined from piling or causing to be piled any trash, rubbish, ashes, brush, garbage or filth on the travelled or untravelled portion of West Chestnut Street, in Kokomo, Indiana, or any part thereof, and * * * are further enjoined from building or causing to be built any fires in the places aforesaid.'

Appellants' motion for new trial questions the sufficiency of the evidence and the legality of the decision.

The complaint, which appellants concede states a cause of action for an injunction, alleges that appellees own a house and lot on the south side of West Chestnut Street; that appellants own a vacant lot immediately across the street, on the north side of the street, and that their dwelling house is north of the vacant lot. It is then alleged, among other things, that on certain specific dates appellants deposited rotten apples and garbage on the untravelled portion of the street immediately in front of appellees' house; that for approximately three years appellants have on occasions used such place for depositing garbage, rubbish, ashes, brush, trash and filth, thereby creating a nuisance in that from the decomposed and decayed vegetable and animal matter, noxious vapors and disagreeable and unhealthy odors are generated, essentially interfering with appellees' enjoyment of their property; that on occasions for three years appellants have built trash fires at said place, in which were burned chicken feathers, old rags, rubber, and garbage; that the smoke, dirt, gases, vapors, and noxious odors have settled upon appellees' premises and crept into their dwelling and upon their curtains, clothing, rugs, and furniture, damaging the same and causing discomfort and annoyance to appellees, as well as endangering appellees' health. It is further alleged that such acts were done maliciously and for the purpose of annoying appellees.

Appellants contend that appellees were not entitled to injunctive relief because the evidence proves that they were at fault; that one who seeks the aid of equity must do equity and come into court with clean hands. It would serve no useful purpose to set forth the evidence in detail. The evidence most favorable to appellees does not support this contention.

Secondly, appellants say that what they did was on their own land, inasmuch as they owned to the center of the street, and they were exercising a right of ownership.

While every man has a right to the free enjoyment and use of his own property, his neighbors have the same rights and privileges and he must so use his property as not to unreasonably hurt or hinder his neighbors' rights to the use and enjoyment of their property. Meeks v. Wood, 1918, 66 Ind.App. 594, 118 N.E. 591; Albright v. Crim, 1933, 97 Ind.App. 388, 185 N.E. 304; Shroyer v. Campbell, 1903, 31 Ind.App. 83, 67 N.E. 193; Owen v. Phillips, 1881, 73 Ind. 284.

The statute, Acts of 1881, Sp.Sess., ch. 38, § 709, p. 240, Burns' 1946 Repl. § 2-505, provides that: '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...