Indian Refining Co. v. Commonwealth

• Decision Date: 17 March 1909
• Citation: 117 S.W. 274
• Parties: INDIAN REFINING CO. v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

117 S.W. 274

INDIAN REFINING CO. v. COMMONWEALTH.

Court of Appeals of Kentucky.

March 17, 1909

Appeal from Circuit Court, Franklin County.

"Not to be officially reported."

The Indian Refining Company was convicted of the offense of maintaining a common-law nuisance, and appeals. Affirmed.

B. G Williams, McQuown & Beckham, Field McLeod, and Bradley, &amp Bradley, for appellant.

R. B Franklin, Jas. Breathitt, Atty. Gen., and John F. Lockett Asst. Atty. Gen., for the Commonwealth.

NUNN J.

This appeal is from a judgment for $10,000, rendered by the Franklin circuit court April 28, 1908. Appellant contends that its demurrer to the indictment should have been sustained, because it is void for uncertainty and lack of directness necessary to charge an offense. Section 124 of the Criminal Code of Practice provides: "The indictment must be direct and certain as regards: (1) The party charged. (2) The offense charged. (3) The county in which the offense was committed. (4) The particular circumstances of the offense charged, if they be necessary to constitute a complete offense."

The offense charged is a common-law nuisance committed in Franklin county, Ky. by polluting the water of Elkhorn creek which passes through the county. The particular circumstances of the offense, as alleged in the indictment, are as follows: "Did unlawfully, in said county of Franklin, make and maintain a common nuisance, by emptying, causing to be emptied, and through pipes and otherwise to flow into and upon the waters of Elkhorn creek, at and near its oil-refining plant, which is situated on the waters of said creek, near Georgetown, in Scott county, Kentucky, oil, oil-carrying water, waste, and refuse from the oil-refining plant of said corporation, thereby polluting the waters of said creek in Franklin county, Kentucky, as far down said stream as Peak's Mill, rendering the same unfit for the use of man as well as for live stock watering purposes, because of the foul and unpleasant smell, taste, and appearance thereby given to same, so charging and covering the waters of said creek with foul-smelling and unsightly oily substances as that the beauty of said stream along its winding way is marred, and in times after high water the banks of said creek from the Franklin county line to Peak's Mill, in said Franklin county, are covered therewith, and so foul have the waters of said creek, in said Franklin county, for the...