110 Ky. 282 | Ky. Ct. App. | 1901
Opinion op the court by
Affirming.
The Central Kentucky Lunatic Asylum is the largest of the three charitable institutions provided by the State of Kentucky for the care and treatment of the insane. It was located in 1872 upon a tract of 600 acres of land1 near Lakeland, in Jefferson county, at a point some six or seven miles distant from the Ohio river. A water •course known as “Goose Creek,” which is about ten feet wide and from oue to two feet deep, runs through the territory of the asylum, close to the buildings erected thereon, in a westwardly direction, and empties into the1 Ohio, river. Soon after the location of the asylum a sewer was constructed, through which the slops and offal of the asylum were emptied into Goose creek above the lands of plaintiff, and1 it has been continuously used from that time.. From the date of the original location in 1872 the State has been continuously enlarging and improving the asylum, until it has expended in building alone more than $500,000; and it now furnishes accommodations: to more than 1,200 lunatics, in addition to necessary attend
The evidence in the record, we think, shows that for several months during the summer and early fall the waters of Goose creek are polluted below the point where the sewer empties into it to such an extent as to render it unfit for stock water, and that at times an offensive odor arises from the stream, which to a large extent renders the home of plaintiff disagreeable, and that the stream- itself hats a filthy and disagreeable appearance. There is no evidence to support the claim that any epidemics or diseases result therefrom. While, on the other hand, it is conclusively shown that it is absolutely necessary for the use of the asylum that the lakes should be maintain
The question first to be determined under this state of facts is whether appellant has an adequate remedy at law for the injuries complained of by an action for dam ages, as the rule is settled that an injunction will not be granted where the remedy at law is full, adequate, and complete. It was held in Hauns v. Lunatic Asylum, 103 Ky., 562; 20 R., 246 (45 S.W., 800), that an individual could maintain a common-law action against appellee for injuries identical in character with those herein complained of, and that an execution sued out upon a judgment in such a proceeding could be levied upon the property of appellee, unless the sale of such property would render the corporation wholly unable to care for the insane under' its charge. And, even if it be conceded that appellee had no property which came under this head — that would be liable to such an •execution — we think it must be- conclusively presumed that the legislature would make suitable provision for the payment of such a judgment, as it is in reality a claim against the State, when it had been properly ascertained and determined in the courts of the State. But, even if it be conceded that appellants’ claim for an injunction could not be defeated on this ground alone, “it is a rule, practically without exception, that'a court of equity will