Pittsburg, C., C. & St. L. Ry. Co. v. Town of Crothersville

• Decision Date: 17 October 1902
• Citation: 159 Ind. 330,64 N.E. 914
• Parties: PITTSBURG, C., C. & ST. L. RY. CO. v. TOWN OF CROTHERSVILLE et al.
• Court: Indiana Supreme Court

159 Ind. 330

64 N.E. 914

PITTSBURG, C., C. & ST. L. RY. CO.

v.TOWN OF CROTHERSVILLE et al.

Supreme Court of Indiana.

Oct. 17, 1902.

Appeal from circuit court, Jackson county; T. B. Buskirk, Judge.

Action by the Pittsburg, Cincinnati, Chicago & St. Louis Railway Company against the town of Crothersville and others. Judgment for defendants. Plaintiff appeals. Affirmed.

S. Stansifer and M. Z. Stannard, for appellant. J. A. Cox and C. H. Montgomery, for appellees.

MONKS, J.

It appears from the record that appellees, the town of Crothersville, its board of health and marshal, were taking steps and threatening to remove appellant's stockpens in said town, on the ground that they were a public nuisance, and that this suit was brought to enjoin them from doing so. The complaint was in three paragraphs, the second and third of which were held by the court insufficient on demurrer for want of facts. Appellees filed a general denial to the first paragraph. The court heard the case, made a special finding of facts, stated conclusions of law thereon in favor of appellees, and rendered final judgment against appellant.

It is first insisted by appellant that the court erred in sustaining appellees demurrer to the second and third paragraphs of complaint. Appellant's second paragraph of complaint proceeded upon the theory that, as there was a vacancy in the board of trustees of the town of Crothersville, the acts of the remaining trustees, acting as a board of health, in declaring appellant's stockpens in said town, as maintained and used, a public nuisance, and in ordering the abatement of the same, were void, and that for this reason they could be enjoined from abating them, even if they were a public nuisance. The theory of the third paragraph was that there was no power delegated to the board of trustees of a town, as such, or as a board of health, to declare that said stockpens were a public nuisance, and order the abatement thereof, or, if delegated, that such a law was in violation of the constitution, and that therefore they could be enjoined, although the stockpens, as maintained and used, were a public nuisance. It was shown in each of said paragraphs that it was claimed by appellees that said stockpens, as maintained and used, were a public nuisance, and that the board of trustees of said town, claiming to act as a board of health, had so declared and ordered, and were threatening their removal for that reason. The rule is that one who comes into equity must come with clean hands, or, as sometimes expressed, “He that hath committed iniquity shall not have equity.” Fet. Eq. pp. 37-40; Bisp. Eq. pp. 61-63; 11 Am. & Eng. Enc. Law (2d Ed.) pp. 162, 163. To comply with this rule, in addition to the allegations in each of said paragraphs, facts showing that said stockpens, as maintained and used, were not a public nuisance, should have been averred. 10 Enc. Pl. & Prac. pp. 931, 932. With the facts already averred in said paragraphs, such allegations were necessary to show that appellant was not in fault; that it came with clean hands.

One of the causes assigned by the appellant for a new trial was that the court erred in ruling that “the burden of proof was upon appellant to prove that the stockpens were not a public nuisance.” It was alleged in the first paragraph of complaint upon which the trial was had, among other things, that the stockpens, as maintained and used by appellant, were not a public nuisance, and the manner in which the same were maintained and used was specifically set forth. A general denial was the only answer filed by appellees. After all of appellant's evidence in chief, except that in support of the allegation that the stockpens were not a public nuisance, had been given, counsel for appellant stated to the court that he claimed “that the burden of proof on the question of whether or not the stockpens were a public nuisance rested upon appellees, while appellees contended that it was upon appellant; and thereupon counsel for appellant moved the court to rule that the burden was upon the appellees, which motion the court overruled” on the ground that the burden of proof on the question of whether the stockpens were or were not a public nuisance was upon appellant, after which appellant introduced its evidence in chief in support of the allegation in the complaint that the stockpens were not a public nuisance. This ruling of the court furnished appellant no ground for an exception, for the reason that there was nothing before the court for decision. If counsel for appellant was correct in his contention that appellant's case was made out without any evidence in support of the allegation in the complaint that the stockpens were not a public nuisance, and that the same was a matter of defense, appellees could not have given any evidence to show that they were a public nuisance, because no such defense was pleaded. In such case it would seem that neither party was entitled to give any evidence on the question of nuisance. If, however, counsel for appellant was correct in his contention that the question of whether or not the stockpens were a public nuisance was an issue in the case, and the burden of proof as to such issue was on appellees, then he should have rested his case in chief without giving any evidence on that question; and, if appellees introduced any evidence on that issue, he should, after appellees had closed their evidence, have offered evidence to show that the same were not a public nuisance. If the court refused to admit such evidence on the ground that the burden as to that question was upon appellant, and that the same was necessary to make out appellant's case, and should have been given in chief, an exception to such ruling, and the assignment of the same as a cause for a new trial, would have saved the question. If this had been done, an assignment of error that the court erred in overruling appellant's motion for a new trial would have presented the question in this court. By the procedure adopted, appellant's counsel obtained the opinion of the court on the question, after which he acted in conformity therewith, instead of adhering to his own theory. The ruling of the court was the mere expression of an opinion, which could properly have been refused, and was in reference to a question not then before the court for decision. It is the opinion of the court, however, that, under the issues joined in the cause, the burden was upon appellant to prove that the stockpens as used and maintained by it were not a public nuisance.

During the progress of the trial the court refused to permit appellant to prove “the existence of hogpens in the immediate vicinity of the stockpens, and that they were kept in such a manner that stenches arose therefrom.” There was no error in this ruling of the court. The fact that other persons were at the time maintaining similar nuisances in that vicinity, or that the nuisance was caused by appellant and others acting together or independently of each other, was not a matter of justification or excuse. The acts of several persons acting together or independently of each other may constitute a nuisance, though the injury occasioned by the acts of any one would not have amounted to a nuisance. Gillett, Cr. Law (2d Ed.) § 643; 21 Am. & Eng. Enc. Law (2d Ed.) 690 (7), 719 (10); 28 Am. & Eng. Enc. Law (1st Ed.) 970, 971, note 1; 1 Wood, Nuis. (3d Ed.) §§ 168, 169, 448, 449, 558, and notes; Paper Co. v. Pope, 155 Ind. 394, 402, 57 N. E. 719, 56 L. R. A. 899;Dennis v....