Village of Kenesaw v. Chicago, Burlington & Quincy Railroad Company

• Decision Date: 12 June 1912
• Docket Number: 16,750
• Citation: 136 N.W. 990,91 Neb. 619
• Parties: VILLAGE OF KENESAW, APPELLEE, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, APPELLANT
• Court: Nebraska Supreme Court

136 N.W. 990

91 Neb. 619

VILLAGE OF KENESAW, APPELLEE, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, APPELLANT

No. 16,750

Supreme Court of Nebraska

June 12, 1912

APPEAL from the district court for Adams county: HARRY S. DUNGAN JUDGE. Affirmed.

AFFIRMED.

Byron Clark, Frank E. Bishop and John C. Stevens, for appellant.

Tibbets Morey & Fuller, contra.

OPINION

LETTON, J.

This is an action to enjoin the defendant railroad company from maintaining stock-yards at the place where they are now situated in the village of Kenesaw.

The trial court found that the stock-yards "are located in or near the center of said village of Kenesaw, in the thickly settled portion thereof; that they are adjacent to the main business street of said village and about 40 feet therefrom the entrance to said yards, pens and inclosures being about 80 feet from said street; that the same are kept in as good a condition as they can be kept, considering the purposes for which they are necessarily used, by defendant as a common carrier by railroad of live stock; but that, by reason of the manure and the natural odors from the animals therein inclosed, there arises therefrom smells and stenches, and the air thereabout is greatly filled and impregnated with many loud noises and many noisome, unhealthful stenches, stinks and smells, all of which are very offensive to the residents and citizens of the plaintiff and to those persons who necessarily go to and from said village for the transaction of business and otherwise. The court finds that such conditions constitute a great, irreparable, continuing and common nuisance to the citizens and residents of said village. The court further finds that said stock-yards, pens, and inclosures, by reason of the close proximity to the principal streets of said village, their nearness to the business and residence houses of said village, and also by reason of all the facts hereinbefore set forth, and all of the facts alleged in plaintiff's petition, constitute, in their present location, and would constitute at any place within two blocks from such location, a continuing public nuisance which should be abated, and for which there is no adequate remedy at law. The court further finds that the plaintiff is entitled to maintain this action." A perpetual injunction was granted accordingly.

Three points are argued on behalf of appellant: First, that the village has no right or authority to maintain this action; second, that the court erred in holding that the stock-yards and the maintenance and the use of them were a nuisance, either public or private, which required removal; and, third, that the decree is so indefinite, uncertain and unreasonable that it should be reversed.

As to the contention that the village has no right to maintain the action: It is first argued that there was no public nuisance or offense shown. This will be considered later in passing upon the sufficiency of the evidence.

It is next said that the village is given express authority to deal with the subject of nuisances by ordinances, and is not given any right to sue, and the case of City of Ottumwa v Chinn, 75 Iowa 405, 39 N.W. 670, is cited as upholding this argument. We are not impressed with the doctrine announced in that case, and are of the opinion that, under the corporate and general powers conferred by sections 41, 56, 69, art. I, ch. 14, Comp. St. 1909, it was entirely proper to obtain the judgment of a court of equity as to whether or not a public nuisance existed, and its aid to abate the same if one existed. We believe that the supreme court of Minnesota in the case of City of Red Wing v. Guptil, 71 Am. St. Rep. 485 (72 Minn. 259, 75 N.W. 234), in holding that "a city authorized by its charter to abate or compel the abatement of public nuisances has power to compel the abatement of a nuisance affecting the comfort or convenience of the public, * * * and, therefore, it may maintain an equitable action to aid in compelling an abatement of such nuisance," announces a sounder and better rule. This doctrine is supported by the following authorities: Hickory v. Railroad, 141 N.C. 716, 53 S.E. 955; Moore v. City of Walla Walla, 2...