Ohio River Sand Co. v. Com.

• Decision Date: 14 May 1971
• Citation: 467 S.W.2d 347
• Parties: OHIO RIVER SAND COMPANY, Inc., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 347

467 S.W.2d 347

2 ERC 1577

OHIO RIVER SAND COMPANY, Inc., Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

May 14, 1971.

J. D. Buckman, Jr., Shepherdsville, for appellant.

John B. Breckinridge, Atty. Gen., William Bryan Martin, Asst. Atty. Gen., Frankfort, for appellee.

OSBORNE, Judge.

The appellant, Ohio River Sand Company, Inc., was indicted on March 4, 1969, for maintaining a public nuisance in that the company habitually and continuously did unlawfully cause dust, filth, refuse and waste and other things to be put into the air, atmosphere, streams and waters rendering them offensive and polluted.

The case was tried on December 3, 1969, and the company was found guilty and fined $1.00 and cost. Following the entry of the verdict, the trial court permanently enjoined the company from maintaining the nuisance. From that judgment this appeal is prosecuted. We are of the opinion the judgment should be affirmed.

Appellant relies upon four grounds on which it insists the judgment should be reversed. They are as follows:

1. The trial court erred in failing to sustain appellant's motion for a change of venue.

2. The trial court erred in not sustaining a motion to dismiss based on the grounds that KRS 224.010, etc., abrogates the common-law offense of nuisance where the facts constituting the offense also violate the statute.

3. The trial court erred in permitting certain photographs introduced as evidence when said photographs were obtained subsequent to the indictment and copies of them were not furnished appellant prior to their offer in evidence.

4. The trial court erred in not sustaining a motion for a directed verdict on the grounds that appellant's operation was a normal one in that it did not produce pollutants in any greater quantity than other similar operations.

We will deal with the foregoing contentions in their respective order.

1. The trial court erred in failing to sustain appellant's motion for a change of venue.

Whether or not a change of venue should be allowed is within the sound discretion of the trial court and unless that discretion is abused this court will not disturb the judgment. Tinsley v. Commonwealth, Ky., 283 S.W.2d 362. Appellant alleged in its motion that it could not receive a fair trial in Bullitt County because the facts of the case were well known to the prospective jurors and the Louisville Times had, on June 6, 1969, and again on July 3, 1969, published inflammatory articles thereby creating a general prejudicial opinion in the minds of the public. The motion also alleged that one of the chief witnesses for the Commonwealth, Nancy Strange, was Clerk of the Bullitt Circuit Court. Appellee filed counteraffidavits which denied the contentions of appellant and placed in issue those facts shown which appellant relied on for a change of venue. The trial court considered the affidavits and counteraffidavits and determined that appellant could receive a fair trial in Bullitt County. We are not disposed to disturb this finding.

2. The trial court erred in not sustaining a motion to dismiss based on the grounds that KRS 224.010, etc., abrogates the common-law offense of nuisance where the facts constituting the offense also violate the statute.

The substance of appellant's contention in this respect is that KRS 224.010 etc., abrogates the common-law offense of public nuisance where the acts constituting the nuisance are prohibited by the statute. Conceding for the purpose of argument that the acts for which appellant was prosecuted in this action violate the pollution statutes, we still do not believe the statute abrogates the offense of public nuisance. KRS 224.100 provides:

'KRS 224.010 to 224.060, 224.080 and 224.100 shall not be construed as repealing any of the laws of the Commonwealth relating to the pollution of the waters thereof or any conservation laws, but shall be held and construed as ancillary and supplementary thereto, except to the extent that the same may be in direct conflict with KRS 224.010 to 224.060, 224.080 or 224.100.'

We believe this section is conclusive that the legislature did not intend to abrogate the common-law remedies. We have held that the intention to abrogate the common law will not be presumed and that the intention to repeal it by statute must be clearly apparent. Miller v. Scott, Ky., 339 S.W.2d 941. Repeal by implication has never been looked upon favorably by the courts. Ruby Lumber Co. et al. v. K. V. Johnson Co., 299 Ky., 811, 187 S.W.2d 449.

3. The trial court erred in permitting certain photographs introduced as evidence when said photographs were obtained subsequent to the indictment and copies of then were not furnished appellant prior to their offer in evidence.

Appellant contends that certain photographs introduced by the witness, Wilbur Strange, were improperly admitted in evidence as they did not fairly and adequately report the conditions existing at the time of the indictment because they were made subsequent to the indictment. The witness testified that even though the photographs were taken subsequent to the date of the indictment they fairly and adequately represented conditions existing at that time. In any event, we do not find where appellant objected to their introduction at the time they were offered in evidence. Its failure to properly object constituted a waiver of its right to later complain. Smith v. Com., 283 Ky. 492, 141 S.W.2d 881. The record reveals that, when the photographs were first proffered and before they were marked for identification and offered in evidence, appellant did object. Following this objection the photographs were properly marked and identified and tendered in evidence at which time no objection was made. The record is not clear as to the basis of appellant's objection at the time it was made. In any event, the...