Winbigler v. Clift

• Decision Date: 06 April 1918
• Docket Number: 21,461,21,460
• Citation: 102 Kan. 858,172 P. 537
• Parties: C. W. WINBIGLER, Appellant, v. JOHN CLIFT, Appellee, THE STATE, ex rel. VERNON DAY, as County Attorney, etc., Appellee, v. JOHN CLIFT, Appellant,
• Court: Kansas Supreme Court

172 P. 537

102 Kan. 858

C. W. WINBIGLER, Appellant, v. JOHN CLIFT, Appellee, THE STATE, ex rel. VERNON DAY, as County Attorney, etc., Appellee, v. JOHN CLIFT, Appellant,

Nos. 21,460, 21,461

Supreme Court of Kansas

April 6, 1918

Decided January, 1918.

Appeals from Harper district court; GEORGE L. HAY judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. NUISANCE--May be Both Private and Public. A business may be conducted under conditions which will constitute it a private as well as a public nuisance.

2. SAME--Petition to Abate Private Nuisance--Stated Cause of Action. On the facts stated in the opinion it was error to sustain a demurrer to the petition in a suit brought by an individual to enjoin the keeping of a horse and mule market in close proximity to his residence.

3. SAME--Public Nuisance Shown by the Evidence. In an action by the state on the relation of the county attorney, it is held that the evidence was sufficient to justify a finding that a horse and mule market conducted by the defendant constituted a public nuisance.

No. 21,460 reversed.

E. C. Wilcox, and Donald Muir, both of Anthony, for the appellant.

George E. McMahon, of Anthony, for the appellee; Don F. Reed, of Harper, of counsel.

No. 21,461 affirmed.

Don F. Reed, of Harper, and George E. McMahon, of Anthony, for the appellant.

Vernon Day, county attorney, for the appellee; E. C. Wilcox, and Donald Muir, both of Anthony, of counsel.

OPINION

PORTER, J.:

These cases involve substantially the same facts and have been submitted together. In the first, Dr. C. W. Winbigler seeks to enjoin as a private nuisance the maintenance of a horse and mule market across the street from his residence in the city of Harper. The court sustained a demurrer to his petition, and he appeals. The second suit was brought by the state, on the relation of the county attorney, to enjoin the defendant from maintaining the place, on the ground that it constitutes a public nuisance. The court found against the defendant and ordered the nuisance abated, from which judgment he appeals.

The petition of Dr. Winbigler, to which the court sustained a demurrer, alleges that he owns and resides in a dwelling house on three lots in the city of Harper, situated in one of the desirable residence districts; that the defendant is the owner of a half block immediately east of the plaintiff's residence, separated by a street sixty feet wide, upon which the defendant maintains a horse and mule market; that for several months he has maintained a corral or pen extending to the street in the direction of the plaintiff's residence, in which he keeps and feeds from 50 to 150 horses and mules, permitting them to remain there for such a length of time that manure and filth accumulate in great quantities, causing a noxious stench to permeate plaintiff's dwelling, injuring the health of the plaintiff and his family and depriving them of the comforts of his home; that the filth attracts large swarms of flies, which infest plaintiff's home; and that the horses and mules are visible from the living room of the plaintiff's residence and are constantly indulging in unsightly practices, by reason of which plaintiff's home is rendered almost uninhabitable.

The demurrer was sustained solely upon the ground that the petition shows a public nuisance, and that the plaintiff has no right to maintain a suit to abate it. The principal case relied upon in support of the ruling is Jones v. Chanute, 63 Kan. 243, 65 P. 243, which was an action to abate a nuisance caused by filth flowing from a hotel into an open sewer, and where it was held that owners of property along the sewer could not maintain an injunction. A more recent case relied upon by defendant is Dryden v. Purdy, 97 Kan. 59, 154 P. 221, where the plaintiff sought to enjoin the proprietor of a livery stable from placing buggies in the street in front of his house, his contention being that he suffered annoyance and inconvenience in a manner different from that of the general public, because the vehicles interfered with his view of the public street. It was held that he failed to show that he suffered inconvenience different in kind from that of the public, and that the action could not be maintained.

In Venard v. Cross, 8 Kan. 248, the opinion quotes from a note to Ashby v. White, 1 Smith's Leading Cases, 364, where it was said:

"'There are cases in which the act done is a grievance to the entire community, no one of whom is injured by it more than another in the kind of injury, though one may be much more injured than another in degree. In such a case, the mode of punishing the wrongdoer is by indictment, and by indictment only. Still, if any person has sustained a particular injury therefrom, beyond that of his fellow citizens (and differing in kind) he may maintain an action in respect of that particular damnification.'" (p. 255.)

Nuisances are sometimes private as well as public, and we think the nuisance complained of here was both.

"The number of the persons who are specially injured by a nuisance does not affect the right of action for such injury or make their injury identical with that of the public at large, but any of such persons may maintain an action for the nuisance; and the fact that several persons join in a suit to abate a public nuisance does not show that each of them may not have sustained such special injury as entitles him to relief." (29 Cyc. 1213.)

In Stotler v. Rochelle, 83 Kan. 86, 109 P. 788, the plaintiff sought to...