Pritchett v. Bd. of Com'rs of Knox Cnty.

• Decision Date: 02 June 1908
• Docket Number: No. 6,614.,6,614.
• Citation: 42 Ind.App. 3,85 N.E. 32
• Parties: PRITCHETT v. BOARD OF COM'RS OF KNOX COUNTY et al.
• Court: Indiana Appellate Court

42 Ind.App. 3

85 N.E. 32

PRITCHETT

v.BOARD OF COM'RS OF KNOX COUNTY et al.

No. 6,614.

Appellate Court of Indiana.

June 2, 1908.

Appeal from Circuit Court, Sullivan County; C. E. Henderson, Judge.

Suit by Ella A. Pritchett against the board of commissioners of Knox county and others. From an adverse judgment, plaintiff appeals. Reversed, with instructions for new trial.

John T. Hays, W. H. Hays, W. T. Gontchett, Jas. S. Pritchett, Louis C. Embree, and Morton C. Embree, for appellant. John Downey, Harry R. Lewis, W. A. Cullop, and Geo. W. Shaw, for appellees.

COMSTOCK, J.

Action by appellant against the appellees to enjoin certain alleged improper uses of the Knox county jail and for damages. The complaint was in one paragraph. The issues of fact arose upon the separate answer of general denial filed by each of the defendants. A trial resulted in a finding in favor of the defendants and a judgment that the plaintiff take nothing by her suit. Appellant assigns the overruling of her motion for a new trial as error. The action was begun in the Knox circuit court, and the venue was changed to the Sullivan circuit court.

Plaintiff alleges: That on the 8th day of January, 1895, she became the owner in fee simple of a certain lot (describing it) in the city of Vincennes, and has ever since continued to be the owner and in possession thereof. That there is situate thereon a dwelling house and other buildings and at the time of the erection of the jail later mentioned in the complaint was of the value of $7,000. That during the whole period of her said ownership, she, with her husband, her son, and her daughter, has kept the same as a dwelling place and home. That prior to the erection of said jail, the lands so occupied by the plaintiff were advantageously situated in a peaceful neighborhood, upon one of the most desirable residence streets in said city, and the use thereof by the plaintiff, her husband, and her children, was in all respects pleasant and comfortable, and their said occupancy and use were never disturbed by noises of profane and indecent language, such as are later described in the complaint. That on the 1st day of January, 1902, defendant board of commissioners of Knox county began negotiations for the purchase of the northwest half of the lot which lies immediately contiguous to her said land, with the intent to build and maintain a jail. That the plaintiff advised said defendant that its erection and maintenance at said place would be a nuisance to her and would result in her irreparable damage; but, notwithstanding, to wit, on the same day, said defendant purchased said northwest half of said lot for said purpose and caused the same to be conveyed to said board of commissioners of the county of Knox and began the making of preparations for the erection of said jail. And before said jail was erected, or any steps had been taken in the erection thereof, the plaintiff advised said defendant that its erection and maintenance would work irreparable injury and annoyance to her and her family, and requested said defendant not to erect or use said jail upon the northwest half of said lot; but, notwithstanding said request, said defendant caused to be erected upon the northwest half of said lot within 30 feet of the plaintiff's said dwelling house, a large stone jail, in such manner that upon the side of said jail building next to and overlooking plaintiff's dwelling house and the kitchen, dining room, living room, and sleeping apartments of the plaintiff and her said husband and children, there are 18 windows, each of which is more than 3 feet wide and 7 feet long and so constructed that the same may be and are constantly open, and so that prisoners confined in said jail can stand thereat and look down late the plaintiff's said home and the rooms and apartments aforesaid. That said jail was completed in the year 1902, in the form and condition in which it now is, with said windows constructed as aforesaid and with its interior occupied by iron and steel cells with iron and steel doors, which in opening and closing make loud and discordant noises, and immediately upon the completion of said building, and ever since, it has been used by the defendant as the common jail of said county, and said defendants have daily had confined therein an average of 40 prisoners, criminals and insane, each day and night, and have suffered, and still continue to suffer, said prisoners to have said windows open and to stand and to sit thereat and loudly scream, sing, swear, curse, and utter profane and indecent language day and night and to pound upon the iron cells and bars of said jail and constantly to make loud and dismal noises and to call to said plaintiff and her said family as they pass to and fro in said home, to curse them, and to use vile and indecent language. That by reason of these things the plaintiff and her family are wholly deprived of the quiet and comfort as well as the privacy of their said home and greatly disturbed in the enjoyment and peace thereof and are prevented from resting and sleeping at night, and their guests and friends who call upon said plaintiff also are disturbed, insulted, and rendered uncomfortable. That this state of affairs has existed since the year 1902, and still exists, without promise of any abatement. That the defendants pretend that they are powerless to abate or prevent the same in whole or in part. Plaintiff and her family have requested the defendants to prevent and abate said nuisance, but they have neglected to do so, and say that they are powerless to control said prisoners. It is alleged that, in common justice to plaintiff and her said family, said defendants should close the openings aforesaid, overlooking her home, or should control said prisoners and prevent their sitting or standing at said windows and looking down into plaintiff's home and calling to plaintiff and her family and said guests and disturbing them in the manner aforesaid, and so conduct said jail in a quiet, decent, and orderly manner, and not as a common nuisance to the public and a common nuisance to the plaintiff in respect of her said home. Defendant Abraham Westfall is the sheriff of Knox county, and as such has control and management of the prisoners, and defendant Edward Busching is jailer, and as such is in control of said jail, subject to the order and control of his codefendants. In addition to its uses as a common jail, said building is used, and has been for more than three years, as a prison of said city of Vincennes, and at all hours of the night and in daytime the police officers of said city drive to said jail in the patrol wagon of said city, delivering prisoners thereto, and in doing so, and in opening and slamming said iron and steel doors, and by loud and boisterous talking, greatly disturb and annoy the plaintiff and her guests and family, and the prisoners so delivered usually in a drunken frenzy, swear, use loud and obscene language, whereby the plaintiff and her family are awakened and disturbed at night and greatly annoyed both by day and night. That, unless some remedies for the wrongs and annoyances be provided by decree of the court, the same will continue indefinitely, and the defendants threaten and declare that they will continue to maintain said jail in its present condition and in the manner aforesaid. The plaintiff prays the court for a decree forever enjoining the defendants from ever using said property as a jail and from confining therein, in the manner aforesaid, prisoners and insaneand disorderly persons; or, if the court shall not deem the plaintiff entitled to the relief aforesaid, then that she have a decree forever enjoining the defendants from suffering the prisoners confined in said jail to stand and sit at said windows and openings and look down into the plaintiff's said home, to curse, swear, use load and indecent and profane language in the hearing of said plaintiff and her family and guests while at her said home, to slam said doors, pound upon said cells and doors, and to make loud and boisterous and indecent noises to her disturbance and to the disturbance of her family and guests, and judgment for $7,000 and proper relief.

Each county in the state is required by law to provide a common jail. Burns' Ann. St. 1901, § 8733; Huber v. Robinson, 23 Ind. 137. It is not per se a nuisance, but is a matter of public necessity. 1 High on Injunctions, 789; Burwell v. Commissioners, 93 N. C. 73, 53 Am. Rep. 454;Bacon v. Walker, 77 Ga. 336. The distinction between acts done by the counties for public purposes, and those done for private emolument, is well defined. Board v. Allman, 142 Ind. 573, 42 N. E. 206, 39 L. R. A. 58. “The county is one of the instrumentalities of government and exercises governmental functions. *** It was organized to give effect to the great principle of local self-government, which forms such an important element of English and American liberty, which is indeed the vitalizing and preserving element of constitutional freedom. *** The care of the county prison is committed to the county officers in order to enable the county to discharge its duties as a governmental subdivision. A governmental power under which the care and control of prisons fall is the great one commonly called the ‘police power.’ In caring for prisons a county exercises part of this great power by virtue of its delegation by the Legislature to it, and it is no more liable for the wrongful or negligent acts of the officers in immediate charge of the prison than is the state for the tortious conduct of officers placed in charge of the prisons controlled by the state directly.” White v. Board, etc., 129 Ind. 396, 28 N. E. 846;Morris v. Board, etc., 131 Ind. 285, 31 N. E. 77;Board, etc., v. Daily, 132 Ind. 73, 31 N. E. 531; Board, etc., v. Allman, su...