Kramer v. Sweet

• Decision Date: 18 June 1946
• Citation: 179 Or. 324,169 P.2d 892
• Parties: KRAMER ET AL. <I>v.</I> SWEET ET AL.
• Court: Oregon Supreme Court

179 Or. 324

169 P.2d 892

KRAMER ET AL.

v.SWEET ET AL.

Supreme Court of Oregon.

Argued April 30, 1946.

Affirmed June 18, 1946.

Rehearing denied September 3, 1946.

Evidence — Expert testimony

1. Property owners seeking to have operation of a slaughterhouse in neighborhood of their property enjoined as a nuisance were qualified to testify as to smelling foul odors from slaughterhouse without qualifying as experts.

Nuisance — Slaughterhouse

2. Evidence supported finding that defendant's operation of slaughterhouse in a district that was chiefly residential in character constituted a nuisance, so as to authorize a decree enjoining defendant from operating his plant as a slaughterhouse at any time of the year between April 15 and November 1.

Nuisance — Slaughterhouse

3. Where defendant's operation of slaughterhouse in district that was chiefly residential interfered with other owners in district in reasonable and comfortable enjoyment of their property, fact that defendant used reasonable care in operation of his plant and that offensive odors and excessive amount of flies which resulted were normally incident to carrying on of such business would not preclude enjoining defendant's operation of his plant as a nuisance.

Nuisance — Evidence — Residential district

4. In action to enjoin, as a nuisance, defendant's operation of a slaughterhouse in district that was chiefly residential in character, evidence that upon some of plaintiffs' premises there were insanitary conditions, such as manure piles and outdoor privies and that at least one of plaintiffs kept a milk cow, could not be relied upon defensively.

Nuisance — Slaughterhouse — Residential district

5. Neither a meat processing plant nor a slaughterhouse is a "nuisance per se" nor, if properly conducted and in a proper locality, is it a nuisance in fact, but it may become a nuisance by reason of character of neighborhood in which it is situated.

Nuisance — Slaughterhouse — Residential district

6. The location of a meat processing plant or a slaughterhouse so near to private dwelling houses as to interfere with vested rights of owners thereof constitutes a "nuisance" that may be enjoined by the court.

Nuisance — Slaughterhouse — Residential district

7. That slaughtering of livestock is a lawful and necessary business does not provide a legitimate excuse for location of a slaughterhouse in a residential district.

Nuisance — Slaughterhouse — Residences

8. Where plaintiffs had established their residences in locality for many years prior to invasion thereof by defendant's slaughterhouse, court, in determining whether defendant's operation of slaughterhouse should be enjoined as a nuisance, would take a less favorable view of defendant's case than it might have been disposed to take if his business had been maintained in neighborhood for a long period of time.

Nuisance — Slaughterhouse — Residential district

9. A slaughterhouse in a residential district was prima facie a nuisance, and it was therefore incumbent upon defendant to show that his plant was not a nuisance in fact.

Nuisance — Slaughterhouse — Residential district

10. Where it was established that the stenches and excessive number of flies from defendant's operation of a slaughterhouse in a district that was chiefly residential in character was offensive to senses, rendered life of other property owners in district uncomfortable and interfered with their enjoyment of their property, such condition could be enjoined as a nuisance, without showing that defendant's operation of his plant created a positively unhealthy condition.

Nuisance — Slaughterhouse — Injunction

11. Fact that district in which defendant was operating his slaughterhouse was not a restricted and exclusive residential district did not preclude enjoining of operation of defendant's plant as a nuisance.

Nuisance — Slaughterhouse — Injunction

12. Fact that the nuisance arising out of defendant's operation of slaughterhouse in district that was chiefly residential in character inflicted upon each of property owners in district an identical injury did not make it such a "public nuisance" as to prevent property owners in district from uniting in a suit for injunctive relief.

Nuisance — Remedy

13. Where it is determined that operation of defendant's plant is a nuisance in fact, it is proper to allow defendant a reasonable time to remove his plant or to make such changes as may be necessary to put an end to the nuisance.

Nuisance — Injunction

14. Where decree entered on August 10 enjoining defendant's operation of slaughterhouse in district that was chiefly residential in character between April 15 and November 1 of each year provided that injunction should not be effective until 60 days thereafter, and defendant took advantage of almost whole of 60-day period of grace before filing his notice of appeal, upon affirmance of the decree, that part of decree containing injunction would be suspended only for a period of 30 days from date of Supreme Court's mandate in order that injunction should be made effective without unreasonable delay.

  See 48 Am.Jur. 463
                  Slaughterhouse as nuisance, note, 27 A.L.R. 329
                  46 C.J., Nuisances, § 274
                

Appeal from Circuit Court, Union County.

R.J. GREEN, Judge.

S.H. Burleigh and Carl G. Helm, both of La Grande (Dixon & Burleigh and Helm & Helm, on brief), for appellants.

George T. Cochran, of La Grande (Cochran & Eberhard, on brief), for respondents.

Before BELT, Chief Justice, and ROSSMAN, BAILEY, LUSK, BRAND and HAY, Justices.

AFFIRMED.REHEARING DENIED.

HAY, J.

Plaintiffs brought this suit to enjoin, as a nuisance, the operation of a slaughterhouse by defendants.From a decree in favor of plaintiffs, defendant Sweet, who is now the sole defendant, has appealed to this court.

The property upon which the slaughterhouse stands was acquired by defendants in 1943.There was an old building upon it, and, in February of that year, defendant Sweet began to enlarge and improve it, and installed therein machinery and equipment for the operation of a slaughterhouse and meat-processing plant.Adjacent to the building, he erected pens and corrals for the reception and holding of animals intended for slaughter.The plant is situated upon the bank of the Grande Ronde River, and the overflow from its septic tanks discharges, through gravel, into that stream.As soon as the plaintiffs learned that the plant was to be used as a slaughterhouse, which was before much of the equipment had been installed, they protested, energetically but ineffectively.

The defendant's investment in the plant is $10,736.14, of which $100 is in the site, $5,083.92 in the building, and $5,552.22 in equipment.

Plaintiffs reside in the immediate vicinity of the slaughterhouse.The evidence abundantly indicates that the district is chiefly residential in character.All but one of the plaintiffs' residences are within the city limits of La Grande, and the one exception is just outside the city limits.The district has been laid out in lots and blocks, and is traversed by city streets or by extensions thereof.The grounds around the residences have been improved by sightly lawns and gardens, with shade trees and shrubbery.The Grande Ronde River, flowing in an easterly direction, bounds the district on the north.Defendant's slaughterhouse is outside the city limits, and is within about 180 feet of the residence of one of the plaintiffs.

The trial court found that the operation of the plant produces noisome and offensive odors, and, in summer, attracts swarms of flies; that the prevailing winds carry such odors and flies to the residences of the plaintiffs; and that, operated as a slaughterhouse between April 15th and November 1st, it is a nuisance.A careful consideration of the evidence has persuaded us that such findings were justified.

While, in our opinion, the evidence preponderates in favor of the plaintiffs, it was not by any means one-sided.An assistant state veterinarian, who made several official inspections of the plant, testified for defendant.On his first inspection, he said, he found an excessive number of flies, but the plant and equipment were clean.He did not approve of the location of the septic tanks with reference to their proximity to the river, but said that the condition was not "too alarming".He found no "exclusive" or nauseating odors.A member of the Oregon State Police testified that he investigated the plant on various occasions, and found no nauseating odors present.A sergeant of State Police testified that the slaughterhouse was in thoroughly good up-to-date condition, with no extremely offensive odors other than one would find around any similar establishment.On cross-examination, however, he admitted that he would not like to have his own house "sitting across" from the plant, but said that he considered that to be a "personal question".A veterinarian testified that, in his opinion, the plant was as sanitary and clean as it could be, and that he noticed no offensive smells or excessive numbers of flies.One householder of the...