Russell v. State

Citation69 N.E. 482, 32 Ind.App. 243
Case DateJanuary 14, 1904
CourtCourt of Appeals of Indiana

32 Ind.App. 243
69 N.E. 482

RUSSELL et al.
v.
STATE.

Appellate Court of Indiana, Division No. 2.

Jan. 14, 1904.


Appeal from Criminal Court, Marion County; Fremont Alford, Judge.

James A. Russell and another were convicted of maintaining a nuisance, and appeal. Transferred from Supreme Court. Reversed.


For opinion in Supreme Court, see 68 N. E. 1019.

Herod & Herod, for appellants. C. W. Miller, Atty. Gen., C. C. Hadley, W. C. Geake, and L. G. Rothschild, for the State.


COMSTOCK, J.

The action was commenced by the state of Indiana against appellants, upon the affidavit of one August Haug, for erecting and maintaining a common nuisance, under section 2153, Burns' Rev. St. 1901 (section 2065, Horner's Rev. St. 1901). The cause was first tried before a justice of the peace. From the justice's court an appeal was taken to the Marion criminal court, in which court appellants were found guilty, and fined $10 and costs. Appellants separately assign errors-Mary, that the affidavit does not state facts sufficient to constitute a

[69 N.E. 483]

cause of action against her; James, that it does not state facts sufficient to constitute a cause of action against him; each, that it does not state facts to constitute an offense against the state of Indiana, and that the court erred in overruling their separate motions for a new trial. The affiant, Haug, owned a residence property facing Dugdale street, in Indianapolis, occupied by one Kintz and family as tenants. Appellants owned the vacant lot immediately adjoining on the south facing the same street, and the residence in which they lived, immediately adjoining on the north of affiant's property, facing said Dugdale street. Appellants caused to be erected a fence from 10 to 12 feet high wholly on their own land, beginning at the corner of their residence and running along a line from 6 to 12 inches from the line fence to the street; a like fence on their vacant lot, running from the corner of Haug's house to the street; and two screens of the same height, made of dressed pine boards, opposite two windows in Haug's house looking out upon appellant's vacant lot. These screens were about 4 feet wide, and placed about 5 feet from the windows. The fences and screens were erected because of ill feeling between appellants and the Kintzes. The evidence as to the reasons of their ill feeling is conflicting. The affidavit charges a common nuisance. So much of the statute as is material reads as follows: “Whoever *** erects, continues or maintains any obstruction to the free use of property so as to injure the property of another or essentially to interfere with the comfortable enjoyment of life shall be fined,” etc. By section 290, Burns' Rev. St. 1901, “nuisance” is defined “as whatever is injurious to health or indecent or offensive to the senses or an obstruction to the free use of property so as essentially to interfere with the comfortable enjoyment of life or property.” It has been held that the injury referred to, whether to property or the occupants thereof, is physical. “Acts which do not reach the adjoining property in a physical sense, yet diminish its value and desirability for a particular use, as for dwelling-house purposes, do not, as a rule, constitute actionable nuisance.” Metzger v. Hochrein (Wis.) 83 N. W. 308, 50 L. R. A. 305, 81 Am. St. Rep. 841. Smoke, noise, and noisome smells may, from the property of an annoying neighbor, enter the premises of another, and thereby invade the legal right of him whose premises it...

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5 practice notes
  • Keefer v. State, No. 21,609.
    • United States
    • Indiana Supreme Court of Indiana
    • 12 Octubre 1910
    ...the subject of an action”-may be looked to for that purpose. Hackney v. State, 8 Ind. 494;Moses v. State, 58 Ind. 185;Russell v. State, 32 Ind. App. 243, 245, 69 N. E. 482; Gillett's Criminal Law (2d Ed.) § 640. The term “public nuisance,” as used in the statutes providing a punishment for ......
  • Keefer v. State, 21,609
    • United States
    • Indiana Supreme Court of Indiana
    • 12 Octubre 1910
    ...and the subject of an action." Hackney v. State (1856), 8 Ind. 494; Moses v. State (1877), 58 Ind. 185; Russell v. State (1904), 32 Ind.App. 243, 245, 69 N.E. 482; Gillett, Crim. Law (2d ed.) § 640. The term "public nuisance," as used in the statutes providing [174 Ind. 590] a punishment fo......
  • Giller v. West
    • United States
    • Indiana Supreme Court of Indiana
    • 15 Enero 1904
    ...65, 26 Am. Rep. 10; [69 N.E. 550]Taylor v. Fickas, 64 Ind. 167, 31 Am. Rep. 114;Russell v. State (Ind. App., No. 5,074, Jan. 14, 1904) 69 N. E. 482;Mahan v. Brown, 13 Wend. 261, 28 Am. Dec. 461;Chatfield v. Wilson, 28 Vt. 49;Letts v. Kessler, 54 Ohio St. 73, 42 N. E. 765, 40 L. R. A. 177; P......
  • Wolf v. Forcum, No. 18995
    • United States
    • Indiana Court of Appeals of Indiana
    • 28 Septiembre 1959
    ...did not reach appellants' property in a physical sense. Giller v. West, 1904, 162 Ind. 17, 20, 21, 69 N.E. 548; Russell v. State, 1904, 32 Ind.App. 243, 245, 69 N.E. Appellants possessed no absolute property in the air and light they allege was obstructed by appellees' building. Air and lig......
  • Request a trial to view additional results
5 cases
  • Keefer v. State, No. 21,609.
    • United States
    • Indiana Supreme Court of Indiana
    • 12 Octubre 1910
    ...the subject of an action”-may be looked to for that purpose. Hackney v. State, 8 Ind. 494;Moses v. State, 58 Ind. 185;Russell v. State, 32 Ind. App. 243, 245, 69 N. E. 482; Gillett's Criminal Law (2d Ed.) § 640. The term “public nuisance,” as used in the statutes providing a punishment for ......
  • Keefer v. State, 21,609
    • United States
    • Indiana Supreme Court of Indiana
    • 12 Octubre 1910
    ...and the subject of an action." Hackney v. State (1856), 8 Ind. 494; Moses v. State (1877), 58 Ind. 185; Russell v. State (1904), 32 Ind.App. 243, 245, 69 N.E. 482; Gillett, Crim. Law (2d ed.) § 640. The term "public nuisance," as used in the statutes providing [174 Ind. 590] a punishment fo......
  • Giller v. West
    • United States
    • Indiana Supreme Court of Indiana
    • 15 Enero 1904
    ...65, 26 Am. Rep. 10; [69 N.E. 550]Taylor v. Fickas, 64 Ind. 167, 31 Am. Rep. 114;Russell v. State (Ind. App., No. 5,074, Jan. 14, 1904) 69 N. E. 482;Mahan v. Brown, 13 Wend. 261, 28 Am. Dec. 461;Chatfield v. Wilson, 28 Vt. 49;Letts v. Kessler, 54 Ohio St. 73, 42 N. E. 765, 40 L. R. A. 177; P......
  • Wolf v. Forcum, No. 18995
    • United States
    • Indiana Court of Appeals of Indiana
    • 28 Septiembre 1959
    ...did not reach appellants' property in a physical sense. Giller v. West, 1904, 162 Ind. 17, 20, 21, 69 N.E. 548; Russell v. State, 1904, 32 Ind.App. 243, 245, 69 N.E. Appellants possessed no absolute property in the air and light they allege was obstructed by appellees' building. Air and lig......
  • Request a trial to view additional results

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