State ex rel. Kelly v. Nelson

• Decision Date: 18 May 1904
• Court: North Dakota Supreme Court

99 N.W. 1077

13 N.D. 122

STATE OF NORTH DAKOTA EX REL KELLY, STATE'S ATTORNEY v. THEODORE B. NELSON, ED GARRITY AND HERBERT WANDER

Supreme Court of North Dakota

May 18, 1904

Appeal from District Court, Nelson county; Fisk, J.

Action by the state, on the relation of George D. Kelly, as state's attorney, against Theodore B. Nelson and others to abate a nuisance. Judgment for defendants and plaintiff appeals.

Affirmed.

George D. Kelly, state's attorney, for appellant. M. A. Shirley for respondents.

If the nuisance existed in the particular place proceeded against then such nuisance must be abated and its continuance enjoined, irrespective of any questions of title or ownership in the property harboring the nuisance. State ex rel Sheeks v. Hilliard, 10 N.D. 436, 87 N.W. 980; Commonwealth v. Hayes, 45 N.E. 82; State v. Lord, 55 P. 503; Carter v. Bartel, 81 N.W. 462; Gray v. Stienes, 28 N.W. 475; Nichols v. Thomas, 56 N.W. 540; Littleton v. Harris 34 N.W. 800.

The joint answer interposed by defendants is a general denial merely, and puts in issue the existence or non-existence of the nuisance only. Overton v. Schindele, 50 N.W. 977; Bliss on Code Pleading, section 340.

No brief by respondents.

OPINION

COCHRANE, J.

This is an equitable action prosecuted by the state's attorney of Nelson county to have the Exchange Hotel, situated on lot 10 of block 12, in the village of Aneta. Nelson county, N.D., adjudged to be a common nuisance, and directing that it be shut up, abated and closed, and to enjoin the defendants from using or permitting such premises to be used for the keeping for sale or for the sale of intoxicating liquors, and plaintiff asks for costs and attorney's fees. The case is here for trial anew under section 5630, Rev. Codes 1899.

The complaint, after alleging the ownership of the property to be in the defendant Theodore B. Nelson, proceeds: "That the defendants, Ed Garrity, Theodor B. Nelson and Herbert Wander, now occupy the said real property, upon which there is a building, and there maintain a place where intoxicating liquors are sold, bartered and given away, in violation of the provisions of chapter 63 of the penal code, and where persons are permitted to resort for the purpose of drinking intoxicating liquors as a beverage, and where intoxicating liquors are kept for sale, barter or delivery, in violation of the provisions of chapter 63, and are now engaged in maintaining upon said real property a common nuisance, and will continue to keep and maintain said common nuisance, unless restrained by an order of injunction of the court." A nuisance in this connection is defined by section 7605, Rev. Codes, to be a place "where intoxicating liquors are sold, bartered or given away in violation of any of the provisions of this chapter, or where persons are permitted to resort for the purpose of drinking intoxicating liquors as a beverage, or where intoxicating liquors are kept for sale, barter or delivery in violation of this chapter; * * * and the owner or keeper thereof shall, upon conviction, be adjudged guilty of maintaining a common nuisance." In construing this statute, it has been repeatedly stated by this court that keeping intoxicating liquors for sale, or the selling of intoxicating liquors, contrary to the provisions of law, or both the keeping for sale and the selling, do not constitute the maintenance of a nuisance within its terms. They are but evidences of the offense. The keeping of the place where the prohibited act or acts are done by the defendant is what the statute inhibits in this form of action, and the place can be adjudged a nuisance in an equitable action only when the owner or keeper of it is a party defendant, so that he can defend himself and property against the charge, and be condemned, only after a hearing or opportunity to be heard. State v. Dellaire, 4 N.D. 312, 60 N.W. 988; State v. Rozum, 8 N.D. 548, 80 N.W. 477; State v. Thoemke, 11 N.D. 386, 92 N.W. 480. The evidence in this case shows that defendants were not, either jointly or separately, the owners or keepers of the place where intoxicating liquor was kept for sale or sold in violation of law, within the meaning of the statute as above interpreted. "The place," as used in this context, means the particular place, room or apartment wherein the liquor was kept for sale or sold in violation of law. If it were a fact that one or more rooms were used for this unlawful traffic, the place to be abated would be these particular rooms, and not the entire hotel, when the balance of the building was used for lawful purposes, and not for the maintenance of a liquor nuisance. The owner or keeper of the place has reference to the person or persons occupying and using the place for the keeping for sale of intoxicating liquors in violation of law, whether the sales are made personally or through another, and whether the keeper is owner, lessee, or mere licensee of the place. To be the keeper of a nuisance so as to subject the place to condemnation as such, the person must be an occupant under some claim of right, and not a mere transient and naked trespasser therein; and if possession is obtained for a lawful purpose, then, without the knowledge or consent of the owner of the premises, they are used for illegal purposes, the place will not be adjudged a nuisance as against the owner, unless, after knowledge or notice of its unlawful use, he permits the occupancy and use to continue. Drake v. Kingsbaker (Iowa) 34 N.W. 199; Merryfield v. Swift, 103 Iowa 167, 72 N.W. 444; Morgan v. Koestner, 83 Iowa 134, 49 N.W. 80; State v. Lawler, 85 Iowa 564, 52 N.W. 490; State v. Seeverson (Iowa) 54 N.W. 347; State v. Price, 92 Iowa 181, 60 N.W. 514.

Ed Garrity was a boarder at the Exchange Hotel. His bedroom was upstairs in this building. The upstairs part of the hotel was used entirely as bedrooms for guests of the hotel, and the one used and occupied by Garrity is not described or identified either in the pleadings or by the evidence. He had in his bedroom at one time a case of whisky and four bottles of beer. On three or four occasions, when men were met in another bedroom of the hotel carrying on a poker game, Garrity brought them liquor and sold them drinks. But this was in the bedroom of another guest of the hotel, and this room is not identified. Where Garrity got the liquor he thus sold, whether from his own bedroom or some place out of the building, does not appear. There is no evidence that he at any time sold or gave away the liquor in the room occupied by him as a bedroom, or that the liquor which he had in this room was kept for sale, or for other than his individual use. Garrity was in no way connected with the management of the hotel, as owner, lessee, keeper, employe or otherwise. He had no interest in or authority over such hotel, or any part thereof, excepting the room he occupied as a bedroom. As against him the evidence is entirely insufficient to sustain a finding that he was the owner or keeper of a nuisance within the meaning of this statute.

Again the place where the liquor was kept, and where the sales were made, being wholly unidentified, a judgment of abatement authorizing it to be closed cannot be entered against it. There is no evidence in the record by which the room occupied by Garrity, where the liquor was kept, can be located and singled out from the balance of the rooms in the second story of such hotel. For the abatement of a nuisance, the place must be particularly identified. State...