Weaver v. Kuchler
| Decision Date | 05 September 1906 |
| Citation | 87 P. 600,17 Okla. 189,1906 OK 71 |
| Parties | WEAVER v. KUCHLER et al. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Where a slaughter house has been enjoined as a nuisance, and, on the hearing of a motion to dissolve, the evidence shows that it is not a nuisance per se, and that it can be carried on so as not to constitute a nuisance, the injunction will be modified so as to permit its usage in an unobjectionable manner.
[Ed Note.-For cases in point, see Cent. Dig. vol. 37, Nuisance §§ 72-74.]
Chapter 13, art. 10, Wilson's Rev. & Ann. St., 1903, entitled "An act to protect platted lands and townsite additions from nuisances" provides:
Held, that section 136 limits the persons authorized to bring an action under the act to the owners of real estate as described therein, and an action brought by one who is not the owner of real estate as provided under section 136, or an officer as provided under section 137, must bring himself within the provisions of chapter 56. Wilson's Rev. & Ann. St. 1903, entitled, "Nuisance."
[Ed. Note.-For cases in point, see Cent. Dig. vol. 37, Nuisance, §§ 64-66.]
Error from District Court, Kay County; before Justice Bayard T. Hainer.
Action by John F. Weaver against Henry Kuchler and Amelia Kuchler to abate a nuisance. Plaintiff secured a temporary restraining order in the probate court, which, upon a motion to dissolve in the district court, was modified. From the order and judgment of modification, plaintiff appeals. Affirmed.
In the fall of 1900 the defendants leased three acres of land on the S. 1/2 of the S.E. 1/4 of the N.E. 1/4 of section 22, in township 28 N., of range 2 E. I. M., in Kay county, Okl. T., and located a slaughter house thereon, and used it continuously for that purpose until restrained by the temporary writ issued in this action. In the fall of 1905 the defendants purchased 20 acres of land, including the three acres above described, for the purpose of having a suitable place to feed and keep their live stock in conjunction with their slaughter house, the location of which was within less than a half mile from the corporate limits of the city of Newkirk, and of a tract of land platted into lots and blocks as "College addition" to said city, and within less than a half mile of lands platted to be sold as residence lots and which were actually sold for that purpose. The plaintiff resided with his family about three-eighths of a mile from the defendant's slaughter house on the S.E. 1/4 of section 27, in township 28 N., of range 2 E. I. M., a tract contiguous to defendants' 20 acres, and outside the corporate limits of the city of Newkirk and its additions. A creek called "Spring creek" ran through and across the premises of both parties, the plaintiff's dwelling house being down stream from defendants' slaughter house, and situated about 20 rods back from the creek. Near the dwelling house is a spring from which plaintiff and his family procured their water for family purposes. Plaintiff averred the location of defendants' slaughter house to be within less than a half mile from the corporate limits of the city of Newkirk, and from a tract of land platted into lots, etc., and special injury to himself, in that the defendants permitted to remain upon their premises in and near the slaughter house and creek the offal, refuse and unsalable portions of the animals slaughtered, a part of which, through the creek, became scattered over and upon his premises, causing the water in the spring to become unwholesome, and unfit for use, and that the decay and decomposition on the premises of both parties created a foul, unwholesome stench and odor around his dwelling house, endangering the health of plaintiff and his family. The plaintiff prayed for a judgment permanently enjoining the defendants from using their premises for slaughter house purposes. A temporary restraining order issued out of the probate court on the 25th day of October, 1905, the date of the filing of the petition herein. On the 20th day of November the defendants filed their answer, which contained a general denial, also a demurrer to that part of plaintiff's petition alleging the location of defendants' slaughter house to be within less than a half mile from the corporate limits of the city of Newkirk and its additions. On the 28th day of November the defendants filed a motion to dissolve the temporary writ upon the grounds as set forth in their answer, which was attached to, and made a part of, their motion. A partial hearing was had on December 1st, and both parties ordered to submit additional evidence in the form of affidavits. On the 30th day of December, 1905, the matter came on for final hearing, and the court rendered judgment modifying the temporary order issued, permitting the defendants to operate their slaughter house, but enjoining them "from permitting any offal, refuse, or unsalable matter of said business thereof in any manner to be conducted into the stream running through the defendants' slaughter house yard; and that said defendants, their agents, or their employés, are hereby enjoined from permitting any offal or refuse matter to accumulate in, about, or near the said slaughter house premises, and the defendants are further enjoined from permitting any bones, carcass, or other objectionable matter resulting from the slaughter of cattle and hogs at said slaughter house to remain and decay upon any part of said slaughter house premises." From the judgment modifying the temporary order plaintiff appeals.
Moss & Turner, for plaintiff in error.
C. L. Pinkham and W. S. Cline, for defendants in error.
It is here contended that the order and judgment of the district court modifying the temporary order of injunction should be set aside and reversed for two reasons: First, that the court committed prejudicial error in not passing on the sufficiency on the part of plaintiff's petition demurred to by the defendants before the motion to dissolve the temporary writ was heard. The record shows that the attention of the trial court was never called to the demurrer on file, that both parties announced ready for trial without objection, and the court proceeded to hear the evidence on the motion to dissolve. No objection being raised in the court below, the question cannot be raised here for the first time. The general answer of the defendants, however, waived their demurrer, and the party to whose pleading a demurrer is filed cannot complain that ruling was not made on the demurrer. Penn. Co. v. Bond, 99 Ill.App. 535; 6 Pleading and Practice, 38; Cyc. 259, 274, and authorities cited therein.
The remaining error assigned is that the court erred in modifying the temporary order of injunction. Plaintiff insists that, under section 134, art. 10, c. 13, Wilson's Rev. & Ann. St. 1903 entitled, "An act to protect lands platted into residence tracts and additions to townsites from nuisances," the maintenance of the slaughter house by the defendants was a nuisance "per se." The sections relied upon, read as follows:
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