Russell v. State

• Decision Date: 14 January 1904
• Citation: 69 N.E. 482,32 Ind.App. 243
• Parties: RUSSELL et al. v. STATE.
• Court: Indiana Appellate Court

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 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 reaches. Such right will be protected. In the case of Metzger v. Hochrein (by the Supreme Court of Wisconsin) 83 N. W. 308, 50 L. R. A. 305, 81 Am. St. Rep. 841, it was held that to maliciously erect an unsightly, high, board fence on one's own property in such a way as to obstruct the passage of light and air and obstruct the view to and from a neighbor's dwelling, by reason of which its value is injured, and the use of the house as a dwelling house will have to be abandoned, is not an actionable wrong. Letts v. Kessler, 54 Ohio St. 73, 42 N. E. 765, 40 L. R. A. 177, was a case in which L. and K. owned adjoining lots, and L. erected on his own lot a board fence reaching to the roof of K.'s house, which set upon the line of the lots, which fence shut off the light and air from the windows of the house of K., to his injury, which fence was so erected by L. for no useful or ornamental motives, but from motives of unmixed malice toward K. In the action by K. against L. to compel the removal of the fence, it was held that L. had a legal right to erect and maintain such fence, and that neither law nor equity could compel its removal. In Glendon Iron Co. v. Uhler, 75 Pa. 471, 15 Am. Rep. 599,Jenkins v. Fowler, 24 Pa. 308, and Fowler v. Jenkins, 28 Pa. 176, it is said that a lawful act is not actionable, although it proceeds from malicious motives. These decisions are upon the ground that malicious motives cannot make that wrong which in its own essence is lawful. In Knabe v. Levelle (Super. N....