101 Ky. 195 | Ky. Ct. App. | 1897
delivered the opinion oe the court.
This is an appeal from a judgment sustaining a demurrer to an indictment charging appellee with the offense of suffering, keeping and maintaining a nuisance, committed as follows, viz: “The said T. J. Megibben Co., a corporation called the T. J. Megibben Co., on the — day of September, 1895, in the county and State aforesaid, and before the finding' of this indictment and on divers other days theretofore and thereafter to-wit: At least three hundred and sixty-five days, did unlawfully and willfully keep, suffer and maintain a nuisance, to-wit: Said defendant kept and maintained cattle pens, in which a great number of cattle and other animals were kept confined, and the excrements and drop
The objections to this indictment urged by appellee in support of the judgment of the trial court are as follows: First, that the indictment attempts to charge two offenses, the killing of the fish, which is a statutory offense, and the corruption of the air. We do not think that the averment as to killing the fish necessarily makes the indictment duplex, as it is averred merely as one of the constituent' elements going to make up the nuisance. As in the case of an indictment for the nuisance of keeping a disorderly house there are frequently alleged various statutory or common law offenses, such as gaming.
The second objection to the indictment is that it on its face shows that the offense charged was committed more than a year before the 14th day of September, 1896, when
On the other hand, it is claimed on behalf of the Commonwealth that this prosecution was a continuous one, the indictment containing the statement that “the offense herein charged is the same offense charged in indictment No. 1014, filed in this honorable court on February 16, 1896.” This statement fails, however, to show whether1 the other indictment was pending, or whether it had been quashed and the case re-referred to the grand jury, or whether it had been been dismissed by the Commonwealth’s attorney and re-referred. In N. N. & M. V. R. R. Co. v. Commonwealth, 14. Ky. Law Rep., 197 — following Tully v. Commonwealth, 13
The third objection to the indictment, is- that-the object desired being an abatement of the nuisance, the location must be set out 'in the same manner as the place of a forcible entry where restitution is to be awarded (2 Bishop’s Criminal Procedure, 866). While it is entirely true that no order of abatement could be obtained unless- the location were- so given, such an averment is not necessary to the sufficiency of the indictment.
The fourth objection to the indictment is that where the acts complained of as constituting the nuisance are neither mala in se nor mala prohiMta the indictment must conclude with the allegation of “to the common nuisance of all good citizens there passing or re-passing or having the right to pass or repass,” or “to the common nuisance of all persons there residing or living,” and that a mere conclusion of “to the common nuisance of all good citizens” is not sufficient;
The cases in 6 and 12 B. M. were cases of disorderly houses, while 'the Enright case was a case of keeping a poolroom — occupations in themselves nuisances — but the keeping of cattle pens is, in itself, a lawful occupation, and unless so carried on as to create damage is not per se a nuisance. “The gist of the action of nuisance is damage, and so long as there are damages there are grounds for an action.” (Judge Holt, in the case of the Farmers of Hempstead, 12 Mod., 519). In the case of Scott v. Firth, 4 F. & F.,
We think, therefore, that there should c-ither have been a conclusion to the common nuisance of all the persons there living and abiding, or of all persons there passing and re-passing and having the right to pass, or else that the indictment itself should have shown proximity to human habitations or highways, and the use? of the streams which would be damaged by their pollution.
The judgment is affirmed.