223 S.W.2d 356 | Ky. Ct. App. | 1949
Affirming.
Appellees, seven in number, including the city of Covington, brought this suit against appellant, C. Rice Packing Co., hereinafter designated as the Company, to enjoin it from operating its slaughter house and meat packing plant in such manner as to make it a nuisance and requiring it to abate the nuisance complained of. The petition sets out numerous acts which it alleges
constitute the nuisance complained of. In its answer the defendant denies that it operates its plant in a manner to create a nuisance but alleges that it operates it in accordance with approved and modern methods for the operation of such plants and prays that plaintiffs' petition be dismissed. With the issues thus made up considerable proof was taken and upon submission of the case the Chancellor, after giving his reasons therefor, entered a judgment perpetually enjoining and restraining defendant "from operating its plant in such manner as would create, cause, or suffer offensive odors to invade the homes of the plaintiffs or to cause such noises as would interfere with the quiet enjoyment of their homes." It is from this judgment that this appeal is prosecuted.
According to appellant's evidence this whole operation, the bringing in of the livestock, the slaughtering of the animals, the rendering of the offal and the disposal of the other wastes, is conducted in the most efficient and approved manner and in such a way that there should be and is no odor of any consequence from its plant, only such normal odors as would come from any well conducted slaughter and packing house; that the Company uses chemicals in the rendering process designed to kill all odors that might result from that operation and that the equipment used in its rendering process is of the approved type for that purpose. Appellant introduced in its behalf some half dozen witnesses consisting principally of salesmen and equipment service men who call on the Company, retail butchers who bought from it and employees who worked for it, all of whom testified that in their visits to the plant or while performing their work in and around the plant they detected no unusual odors emanating therefrom; that the place was kept clean and compared favorably with any other packing plant in the Greater Cincinnati area with which they were familiar. Dr. Ward, veterinarian in charge of Federal Meat Inspection in the Cincinnati district, testified that during the late war *41 when appellant Company operated under Federal Meat Inspection laws, its operations were being carried on in a proper manner so as to meet all Federal requirements; that it no longer operates under Federal Inspection laws and he no longer inspects it; that he has visited it once unofficially within the past six months before he testified and that so far as he was able to determine the plant was operating in a clean and sanitary manner and compared favorably with plants that operate under Federal Inspection.
Over against this evidence produced by appellants is the testimony of some twenty-five witnesses produced by appellees, including the parish priest of that district, the individual plaintiffs, some officials of the city and others living in the neighborhood. Without detailing all this testimony all of it is in substantial agreement that almost constantly there emanates from the slaughter house unpleasant and obnoxious odors, squeals and other noises from animals being slaughtered and that manure, from trucks bringing stock to the plant, falls onto the sidewalks and in general they picture an unsanitary condition resulting from the plant as it was being operated. Some of the words and phrases used by the witnesses in describing the odors were "unpleasant — obnoxious — very bad — sickening — hard to describe — a sewer could not smell worse — not very pleasant — cannot mistake an odor like that — bad odor — uncomfortable — awful — nauseating — so strong you could hardly stand it — makes you sick at the stomach — terriffic — very, very strong — it turns my stomach — most ungodly smell — unbearable — never smelled an odor like it — terrible — horrible — so bad I could not sleep — has made me nervous — revolting — vile — it gags you — it just stinks terrible — don't know what it smells like — hard to explain — like burnt meat or flesh — foul — nasty odor — like manure — smells worse than burnt hair — disgusting," etc., etc. Although different witnesses testified that the obnoxious odors could be detected at different times during the day and night they were in substantial agreement that they are worse at times than at others and better or worse dependent on wind direction and atmospheric conditions.
From a careful reading of all the testimony we think it is fairly established that from some condition in the slaughter house, whether it is from the rendering of the offal, the disposition of the waste matter by way *42
of the sewers, or from some other unknown cause, there emanates from this plant foul and obnoxious odors which makes living near it unpleasant and unhealthy. In spite of appellant's evidence that the latest approved methods are used in the rendering process and therefore no odors can emanate therefrom we have here preponderant evidence that such odors do emanate from the plant. As was said by this court in another nuisance case, Rogers v. Gibson,
It does not seem reasonable that this parade of witnesses would testify as to those conditions if they did not exist and if they were not affected by the odors and noises of which they complain. If the burden was upon appellees to show that conditions existed which constituted the nuisance complained of they sustained that burden with a preponderance of evidence. In the case of Sexton v. Youngkau,
We think the Chancellor was justified in his findings of fact from the evidence that the conditions complained of did exist and which justified his issuance of the injunction if he had the authority to do so under the law, which point we will next consider.
Other cases upholding the principle that "moving to the nuisance" is no defense to an action to abate it are Barrett v. Vreeland,
On the other question raised by appellant, that appellees have no standing in court but that the nuisance, if any exists, can only be abated in a suit by the Commonwealth, was decided adversely to appellant's contention, not only in the Seifried v. Hays case, supra, but also in the case of Barrett v. Vreeland, supra, which was an action by individuals to enjoin a public nuisance, in that case a blasting operation. Their right to do so was upheld against the contention of the defendant that only the Commonwealth could bring such suit, the court saying (
We think there can be no question in the case at bar but that the appellees, who are citizens living near the slaughter house of appellant and therefore subject to peculiar injury apart from the general public, have the right to maintain this action to enjoin the nuisance even if they had not been joined in the suit by the city of Covington which also seeks to abate the nuisance as a public nuisance under the provisions of its charter KRS 84.210 and .220, and ordinance No. 2739. This does not interfere with the right of the Commonwealth to proceed against appellant Company by indictment and indeed it is shown in the record that an indictment is pending in the Kenton Circuit Court against appellant Company for maintaining and operating a public nuisance. *45
For the reasons indicated the judgment is affirmed.