148 N.E. 154 | Ind. Ct. App. | 1925
Appellee is the owner of a small lot located in the city of Indianapolis, on which is a frame dwelling that for many years has been occupied by appellee as her residence. North of appellee's lot, and separated therefrom by an alley fifteen feet wide, is a similar lot which is, and for a number of years has been, the property of appellant. Adjoining appellant's lot on the north, and but fifty-five feet north of appellee's premises, is a railroad right of way on which are located many railroad tracks over which numerous freight trains are, and for more than ten years have been, operated daily, at all hours of the daytime and nighttime of each day. Both lots are located in a section of the city which, by a city ordinance, is designated and set apart as an "industrial district." In November, 1920, appellant erected a horse stable on the lot owned by him. The stable was frame, placed upon a cement foundation, with cement floors, with windows and doors screened to keep out flies, was rat proof, and was in continuous use as a place to keep horses, from the time it was erected until it was accidentally destroyed by fire, July 28, 1922. Fire from the burning stable so damaged appellee's dwelling that it could not be occupied as a residence until it had been repaired some weeks later. After the fire, appellee, claiming that the stable had been so used that it was, at all times prior to its destruction by fire, a nuisance, commenced this action against appellant for damages.
On the trial, the evidence without conflict established the above facts.
Trial resulted in a judgment for appellee for $250.
Action of the court in overruling motion for new trial is assigned as error. Reasons for new trial which it is necessary to consider are that the decision is not sustained by sufficient evidence, and is contrary to law.
A horse stable within a city is not a nuisance per se, *217
but it may become a nuisance by reason of the location, the manner of its construction, or the way in which it is 1, 2. kept or used. Keiser v. Lovett (1882),
It is not averred in the complaint, nor was evidence submitted at the trial tending to show, that the stable was a nuisance because of the manner of its construction, or that the fire was due to any negligence of appellant in the construction, use or management of the stable; nor is it averred in the complaint, or shown by the evidence, that appellant was actuated by malice toward appellee, either in the erection or use of the stable.
The important question presented by this appeal is whether, under the issues, there is sufficient evidence to show that the stable became a nuisance because of the manner in which it 3. was kept and used. There was evidence that some odor came from the stable, although it was regularly and properly cleaned. It also appears from the evidence that noise caused by the stamping of the horses' feet upon the cement floors was often heard by appellee and others while occupying the dwelling upon appellee's lot. There was, however, no evidence that the odors and noises which came from the stable were other than such as would come from any properly kept and well managed stable for horses.
The Supreme Court of Kentucky in Morris v. Roberson (1910),
The decision is not sustained by sufficient evidence.
Reversed. *219