State ex rel. Stream Pollution Control Bd. v. Town of Wolcott

Decision Date30 March 1982
Docket NumberNo. 2-581A143,2-581A143
Citation433 N.E.2d 62
Parties12 Envtl. L. Rep. 20,862 STATE of Indiana on the Relation of the STREAM POLLUTION CONTROL BOARD, Appellant (Plaintiff Below), v. TOWN OF WOLCOTT, Board of Trustees of the Town of Wolcott, Appellee (Defendant Below).
CourtIndiana Appellate Court

Linley E. Pearson, Atty. Gen., Mary Ann Habeeb, Deputy Atty. Gen., Indianapolis, for appellant.

Terry L. Smith, Dellinger, Dellinger & Smith, Monticello, for appellees.

BUCHANAN, Chief Judge.


The Stream Pollution Control Board (Board) appeals from the trial court's refusal to enter an injunction ordering the Town of Wolcott (Wolcott) to either cover or remove refuse from an open dump, the Board claiming the trial court abused its discretion.

We reverse and remand.


Wolcott operated and maintained an open dump which was used by the public from 1950 until 1978. The Board was notified in 1978 of the existence of the dump and after inspecting the site discovered a large amount of refuse, including junk cars, refrigerators, stoves, cement, asphalt, washing machines, oil drums, furniture, and fires which burned uncontrolled from time to time.

The Board sought an injunction ordering Wolcott to grade and seed the area after it had (1) hauled all refuse to a sanitary landfill, or (2) compacted and covered all refuse with at least two feet of soil (a requirement found in regulations pertaining to sanitary landfill sites, see 330 Ind.Admin.Code 4-5-13). At the hearing on the request for an injunction, the contract purchaser of the dump (Boles) disclosed that he intended to remove the salvageable refuse and mound the non-salvageable refuse. No dirt cover would be placed over the garbage; only dirt which might incidentally be raised by the bulldozer blades during mounding would be mixed with this heap of refuse.

The court entered an injunction prohibiting Wolcott from operating or maintaining an open dump, but refused to order refuse to be covered or removed. Although it found that Wolcott had operated and maintained an open dump, the court also found that it was powerless to order Wolcott to either cover or remove the garbage.

The findings and judgment of the court were:


The Court having heard the evidence and having received the Petitioner's Trial Brief, the Court now finds as follows:

1. The defendants admit retorical (sic ) paragraphs 1 through 6 inclusive of Plaintiff's Complaint and Deny Retorical (sic ) Paragraphs 7 through 11.

2. The parties hereto agreed that a permanent injunction be issued enjoining the operation of any open dump on said site.

3. The Plaintiff's witness concurred at the trial that the present fencing and present signs were sufficient to notify the public that the area was not to be utilized as a public dump and further that said area was apparently not being used as a dump.

4. The parties at the trial and in accordance with the Answer to Defendants Interrogatory # 18, acknowledged the legal requirement of unrestricted public access to cemeteries. Neither party has complained or requested relief from the existing ingress and egress. Thus, this judgment shall not modify the existing ingress and egress to the cemetery.

5. The Plaintiff requested an Order of Mandate requiring either (a) compact and cover all of the refuse at this site with at least two (2) feet of soil, in acceptable contours such that final cover shall have a slope of not less than two (2) precent (sic ) and shall have no depressions that will cause ponding of water, perform final grading on the site, and seed the area with suitable vegetation to control erosion; or,

(b) haul all refuse at the site to an approved sanitary landfill and contour, grade and seed the site as set out in (a) above.

The plaintiff has submitted a Trial Brief to the Court specifically addressing the issue of its authority to require the Defendants to comply with the terms and provisions of IAC 4-5-13 which are provisions relating to sanitary landfills.

6. In accordance with the Plaintiff's Answer to Defendants' Interrogatory # 1, the Court finds that the site in issue was an open dump.

7. In accordance with the Plaintiff's Answer to Defendants' Interrogatory # 8, the Court finds that the requirements as cited above refer to sanitary landfills. The Court finds that inadequate statutory authority exits (sic) to require compliance with terms and provisions of IAC 4-5-13 which is the sanitary land fill statute.

8. The Defendant, Town of Wolcott, did not undertake to comply, construct and maintain a sanitary landfill, and thus the defendants shall not be required to comply with the rules and regulations relating thereto.

9. The Court further finds that open dumping ceased September 1, 1978, and that the contract purchaser, James Boles, testified that he intended to clean up and improve the area which apparently will assist in the resolution of the controversy.


1. The Court finds that the law is with the plaintiff and against the defendant insofar as a permanent injunction enjoins the defendant from operating and maintaining an open dump. In all other respects the law is with the defendant and against the plaintiffs.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the Court that the defendants, the Town of Wolcott and the Board of Trustees of the Town of Wolcott, their agents, employees, assigns and successors in interest be and the same are hereby permanently enjoined from operating an open dump which was the subject of this lawsuit. (Emphasis added).

From this decision the Board appeals.


Our treatment of one issue only is dispositive of this appeal:

Was the trial court powerless to do anything more than enjoin Wolcott from operating and maintaining an open dump?

PARTIES' CONTENTIONS-The Board emphasizes that the Legislature has declared open dumps to be public nuisances, prohibited their operation or maintenance, prohibited the disposal of garbage other than by means of a sanitary landfill or a method approved by the State board, and provided for injunctive relief. Because no specific remedial action other than "injunctive or mandatory relief" is suggested by statutes or regulations bearing directly on open dumps, the regulations pertaining to sanitary landfills (which require coverage of refuse, etc.) may be used as a guideline in framing abatement of the nuisance.

Wolcott counters that the legislature intended to prohibit the affirmative act of open dumping; however, the legislature did not forbid the passive act of allowing refuse previously dumped to remain uncovered. Consequently, a court may prohibit the future accumulation of refuse (the cessation of operation or maintenance) in an open dump, but may not order the removal or coverage of refuse which has already been dumped.


CONCLUSION-A trial court under these circumstances may, within its discretion, order the removal or coverage of refuse at an open dump.

We recognize that the grant or denial of an injunction is a discretionary matter for the trial judge, whose action will be reversed only upon a showing of abuse. Green v. Board of Commissioners, (1969) 251 Ind. 535, 242 N.E.2d 844; State ex rel. Department of Natural Resources v. Mason, (1981) Ind.App., 416 N.E.2d 1312; Indiana Department of Welfare, Medicaid Division v. Stagner, (1980) Ind.App., 410 N.E.2d 1348. As a court of appeal we engage in any reasonable presumption in favor of the trial court; we do not presume error, but affirm the trial court's decision if it is sustainable on any valid legal theory. Thornton v. Pender, (1978) Ind., 377 N.E.2d 613, 620; In Re Marriage of Dreflak, (1980) Ind.App., 402 N.E.2d 1284, 1285. Our judgment is not substituted for the trial court's even though the circumstances might have justified a different result. Terry v. Terry, (1974) 160 Ind.App. 653, 313 N.E.2d 83. Rather, only when the trial court's action was clearly against the logic and effect of the circumstances will an abuse of discretion be found on appeal. McFarlan v. Fowler Bank City Trust Co., (1938) 214 Ind. 10, 12 N.E.2d 752.

One method by which an appellant may show that the trial court clearly acted against the logic and effect of the circumstances is to demonstrate the court's misinterpretation of the law. City of Elkhart v. Middleton, (1976) 265 Ind. 514, 518, 356 N.E.2d 207, 210; In re Marriage of Miles, (1977) 173 Ind.App. 5, 362 N.E.2d 171; 42 Am.Jur.2d Injunctions (1969 & Supp. 1981). And so it is here.

The State tilts with no windmill in maintaining the trial court erroneously concluded that it was without power to order Wolcott to cover or remove the refuse. There is a statutory basis for such power. We have but to examine the statutes in force when this dispute arose, being guided by certain rather elementary rules of statutory construction.

In determining legislative intent, we must examine the entire statute, prior versions, changes made, and the reasons for making them. Bowman v. State (1979), Ind.App., 398 N.E.2d 1306; Livingston v. Consolidated City of Indianapolis (1979), Ind.App., 398 N.E.2d 1302; Merimee v. Brumfield (1979), Ind.App., 397 N.E.2d 315. We are bound "to prevent absurdity and hardship and to favor the public convenience." Walton v. State (1980), Ind., 398 N.E.2d 667, 675 (quoting Loza v. State (1975), 263 Ind. 124, 325 N.E.2d 173).

Another fundamental rule of statutory construction is that statutes relating to the same subject matter must be construed together. Schrenker v. Clifford (1979), Ind., 387 N.E.2d 59; State ex rel. State Board of Tax Commissioners v. Daviess Circuit Court (1967), 249 Ind. 580, 230 N.E.2d 761; Connell v. City of Logansport (1979), Ind.App., 397 N.E.2d 1058. And, "(w)e are bound to construe legislation 'in such a way as to oppose prejudice to public interest'... (S)ocial legislation is construed in favor of those intended to benefit from it." State v. Kokomo Tube, (1981) Ind.App....

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