156 Ind. 233 | Ind. | 1901
Suit by appellee against appellant to ..enjoin, the- maintenance .by the appellant of a disorderly beer-garden in the vicinity, of the residence of the appellee. "Objections to the appointment and jurisdiction of the special judge overruled. Demurrer ’to the plea' to the jurisdiction of special, judge sustained. Demurrer to' complaint overruled; Answer in two paragraphs, the first being a general denial. Demurrer to second paragraph of answer sustained. . Special finding of facts, with conclusions of law in favor of •appellee. Exceptions by appeallant to first, third, and fourth conclusions of law. Motions by appellant to strike out portions of conclusions of law, to- modify and restate .fourth conclusion,, to modify judgment, 'and for a'new trial, overruled. Cross-errors are assigned, by' appellee upon the ' refusal of the court to modify the conclusions of law, and judgment upon the motion of the appellee.
This action was. brought in the Marion Circuit Court, and upon-the .application of .the appellant for a change of
The complaint stated, in substance, that the plaintiff below was the owner of lots eighteen and nineteen in Cleveland Park Place addition to the city of Indianapolis, designated as number 2,520, situated on the west side of Capitol avenue, a short distance from Twenty-sixth street; that on said premises the plaintiff has a house, of nine rooms, well finished, and in good condition, which is occupied by him and by his family, consisting of his wife, two sons, and two daughters, the oldest of said children being seventeen years of age, and the youngest five years; that the said house is situated in a locality thickly settled, and devoted to residence purposes, and that the people of the neighborhood are orderly, intelligent, and of high character for morality and sobriety; that the defendant was the owner of real estate in said city of Indianapolis, situated on the southeast corner of Twenty-sixth street and Capitol avenue, extending along the east side of said 'Capitol avenue about 150 feet south from the line of Twenty-sixth street, and along the south line of Twenty-sixth street about 200 feet east from the line of Capitol avenue, said premises'being on the opposite side of Capitol avenue from plaintiff’s residence, and the south line thereof being about fifty feet north of said residence; that on the northeast (west) corner of defendant’s real estate, and directly on'the Tine of the sidewalks on said TwentyMxth street and Capitol avenue, defendant has erected a large building, two stories in height, about forty feet in width, and seventy feet in length, having a double veranda and entrance on Capitol avenue, and four side entrances on Twenty-sixth street, and ■ containing fifteen rooms; that upon the top of said building is a tower
The only objection taken to the complaint and the entire argument of counsel for appellant in support ¡ of the same are as follows: “We think the complaint, with all of its extravagant and unfounded averments, does' not state facts sufficient to constitute a cause of ^action in favor of the plaintiff. It goes upon the theory of a public nuisance. It does not show that plaintiff sustains any injury not common to the public.” This view of the complaint cannot be sustained. The premises of‘the appellant may be so used as to render them' a public nuisance, but," if the averments -of the complaint are true, they aré also a private nuisance." - While the plaintiff suffers in common with the public,-it is shown that he sustains special injury to his property, and to his fight to the urimolested enjoyment of it. The maintenance, in an otherwise quiet and law-abiding neighborhood, of a disorderly resort, wher'e great numbers of idle, dissolute, and vicious persons, of both sexes, congregate by day and by night, and upon every day of the week, where intoxicating liquors are unlawfully sold, and where loud talking, brawling, and fighting are carried on, may render other real estate in its vicinity less desirable for residence purposes, and less comfortable to the occupants^ and thereby injure
The second paragráph of the answer alleges that the defendant bought, laid out, and fitted up. his premises as a beer-garden, etc., at an expense of more than '$10,000 nearly thirteen years before the commencement of this suit; that said premises were then outside the city of Indianapolis; that each year he has duly obtained liceüse from the board of commissioners of Marion county to sell upon said premises spirituous, vinous, and malt liquors; that long' after the premises so maintained by the defendant had been put in operation, the plaintiff purchased the lot mentioned in the complaint, and built thereon the residence now owned by him, with full knowledge of the character of the garden and resort so carried on by the defendant; that year after year the defendant has continued to expend on said garden,
The matters pleaded were not sufficient to avoid the allegations of the complaint. The facts that the appellant purchased and began to improve and fit up his premises for the purposes of a beer-garden many years ago, and that he has .expended large sums of money in so -doing, with the knowledge- and without objection on the part of the appellee, neither gave him a right by prescription to violate the law, nor estopped the appellee from demanding a cessation of such unlawful practices. The fact that the nuisance was already existing when the appellee bought his lot and built his residence did not deprive the appellee of the right to sue for any special injury, peculiar to himself, afterwards sustained by him or his property. The nuisance complained of was a public nuisance which occasioned special private injury, and no. prescriptive right to violate the law could be urged against the private action for such injury. It has been said “there is no prescriptive right, or any other right to maintain a public nuisance.” Mills v. Hall, 9 Wend. 315, 24 Am. Dec. 160; and also that “the better doctrine would seem to be, that the acquisition of rights by prescription can have nothing to do with the case of public nuisances, either when the state, or when individuals complain of them.” Cooley on Torts, p. 614. The other averments of the answer are merely special denials of matters alleged in the complaint, and as the general denial was also pleaded all of the facts specially pleaded were admissible under it.
' The -court -stated the following conclusions of law upon' the facts found: (1) That the plaintiff, Zimri Lewis, is entitled-to ■ recover, upon his complaint against-the-defendant-, Charles-Fred Kissel. • (2) That said plaintiff take nothing by his complaint against the defendant, Anna L. Kissel, and that she recover- her posts herein. (3) That said plaintiff’s-damages-are $216j and that he is entitled to recover the same of said defendant, Charles Fred Kissel, together with his costs. (4-) That the plaintiff is entitled to -an injunction, perpetually enjoining said Charles Fred Kissel, and that he be enjoined -from conducting and maim taining his said saloon and said beer-garden described in the complaint and special findings of facts herein, and from doing any and-all the acts set out in said special findings of facts, and from, selling intoxicating -liquors in and upon the premises described in the complaint and special findings of -facts¿ which premises are owned by said defendant, Anna L. Kissel, and leased by her to said defendant, Charles Fred Kissel, and from- directly, or indirectly, conducting and maintaining-his said-saloon, and what is known, as “Kissel’s Beer-Garden,’’ - and ffom . selling intoxicating liquors thereon,- or on any part thereof. • - - .
The-first and third conclusions necessarily result from the findings- of fact which closely pursue and fully sustain 'the averments of the complaint- From these findings, the further conclusion: -was inevitable that the plaintiff below was entitled to-an injunction as prayed for in his complaint.' The appellant object's to the form-of the fourth conclusion,' and insists that it is ,too broad and sweeping in its terms. He claims that-only-the unlawful and wrongful acts constituting the nuisance should • have been prohibited, and that the appellant-should not have-been deprived of the right to use Iiis -premises for lawful purposes. In a condensed form, the fourth conclusion is that the plaintiff is entitled to a judg
Objection was made by the appellant to the introduction of evidence of the reputation of his saloon and garden, and as to newspaper reports concerning the same, and it is insisted here that the admission of this evidence was error. It is said in regard to the proof necessary to establish the offense of keeping'a house of ill fame that “Mere reputation is not sufficient, for that is often wholly unreliable, and unworthy of credence, but when accompanied with evidence showing the dissolute character of the inmates, and of the persons visiting'there, it is ádmissible as tending to establish the offense.” Commonwealth v. Howe, 13 Gray 26; Betts v. State, 93 Ind. 375; Whitlock v. State, 4 Ind. App. 432; O'Brien v. People, 28 Mich. 213; People v. Gastro, 75 Mich. 127, 42 N. W. 937; State v. Bresland, 59 Minn. 281, 61 N. W. 450. Considerable conflict is found among the cases upon the subject of the admissibility of such evidence, but many of the decisions holding it incompetent as' a species of hearsay were in criminal prosecutions in which the rules of evidence are often more strict thap in civil actions. In the present case it is expressly alleged that the premises of the appellant have become notorious, and the subject of newspaper comment, because of the open violations of the law thereon, and that such evil reputation has affected the value of property in the neighborhood, and among others the value of the plaintiff’s property, and his enjoyment thereof. In view of these averments, and of the evidence as to the manner in which the appellant’s business was carried on, the testimony as to the evil reputation of the saloon and beer-garden, and the fact that it had been disseminated through the newspapers, was properly admitted.
Other objections to the admission of evidence were made, but even if it were conceded that the evidence was in some instances improperly admitted, such error was not of sufficient importance to justify a reversal of the judgment. Excluding all evidence which may be regarded as doubtful, enough remains to sustain the findings and judgment, and to make it evident that a,correct result was reached by the court.
In the last place, it is contended that the special findings are not sustained by the evidence. We have examined the entire record with great care, and are satisfied that the findings respond to the proof in every material particular. Trifling differences between them are not a sufficient basis for a reversal of the judgment. The license granted to the " , appellant by the board of commissioners of Marion county / was probably void, for the reason that it failed to “specific- J' ally describe the room in which he [the appellant] desires to sell such liquors, and the exact location of the same,” etc.., (Acts 1895, §1, p. 248), §728'3a Burns Supp. Í897. But, j¡ even if valid, the license afforded the appellant no protec-'.jj. tion from the civil consequences of the unlawful and immoral practices set forth in the complaint and special find
Cross-errors are assigned by the appellee upon the conclusions of law. The principal question discussed by counsel for appellee in -this connection is the constitutionality of - the acts regulating the sale of intoxicating liquors in' this State, and providing for-the issuing of licenses to sell,the same.' This question has been.decided by ’this¡.court,.and we do not feel that a further examination' of the. grounds upon.which the validity of these acts was .upheld is.necessary. Haggart v. Stehlin, 137 Ind. 43, 22 L. R. A. 577, and cases cited.
Finding no error, the. judgment is affirmed.