91 Neb. 619 | Neb. | 1912
This is an action to enjoin the defendant railroad company from maintaining stock-yards at the place where they are now situated in the village of Kenesaw.
The trial court found that the stock-yards “are located in or near the center of said village of Kenesaw, in the thickly settled portion thereof; that they are adjacent to the main business street of said Aúlla ge and about 40 feet therefrom, the entrance to said yards, pens and inclosures being about 80 feet from said street; that the same are kept in as good a condition as they can he kept, considering the purposes for Avhich they are necessarily used, by defendant as a common carrier by railroad of live stock; but that, by reason of the manure and the natural odors from the animals therein inclosed, there arises therefrom smells and stenches, and the air thereabout is greatly filled and impregnated with many loud noises and many noisome, unhealthful stenches, stinks and smells, all of Avhich are very offensive to the residents and citizens of the plaintiff and to those persons who necessarily go to and from said ■village for the. transaction of business and otherwise. The court finds that such conditions constitute a great, irreparable, continuing and common nuisance to the citizens and residents of said village. The court further finds that said stock-yards, pens, and inclosures, by reason of the close proximity to the principal streets of said A'illage, their nearness to the business and residence houses of said A’illage,. and also by reason of all the facts hereinbefore •set forth, and all of the facts alleged in plaintiffs petition, constitute, in their present location, and Avould constitute at any place ayithin Iavo blocks from such location, a continuing public nuisance which should be abated, and
Three points are argued on behalf of appellant: First, that the village has no right or authority to maintain this action; second, that the court erred in holding that the stock-yards and the maintenance and the use of them were a nuisance, either public or private, which required removal ; and, third, that the decree is so indefinite, uncertain and unreasonable that it should be reversed.
As to the contention that the village has no right to maintain the action: It is first argued that there was no public nuisance or offense shown. This will be considered later in passing upon the sufficiency of the evidence.
It is next said that the village is given express authority to deal with the subject of nuisances by ordinances, and is not given any right to sue, and the case of City of Ottumwa v. Chinn, 75 Ia. 405, is cited as upholding this argument. We are not impressed with the, doctrine announced in that case, and are of the opinion that, under the corporate and general powers conferred by sections 41, 56, 69, art. I, ch. 14, Comp. St. 1909, it was entirely proper to obtain the judgment of a court of equity as to whether or not a public nuisance existed, and its aid to abate the same if one existed. We believe that the supreme court of Minnesota in the case of City of Red Wing v. Guptil, 71 Am. St. Rep. 485 (72 Minn. 259), in holding that “a city authorized by its charter to abate or compel the abatement of public nuisances has power to compel the abatement of a nuisance affecting the comfort or convenience of the public, * * and, therefore, it may maintain an equitable action to aid in compelling an abatement of such nuisance,” announces a sounder and hotter rule. This doctrine is supported by the following authorities: Hickory v. Railroad, 141 N. Car. 716, 53 S. E. 955; Moore v. City of Walla Walla, 2 Wash. Ter. 184, 2 Pac. 187; Lonoke v. Chicago, R. I. & P. R. Co., 92 Ark. 546, 123 S. W. 395; and by many others. The reasoning
As to the second point: The evidence shows that about 30 years ago or more, when the railroad was first built and a station located at Kenesaw, the country was new and the town was only in embryo; that during this interval of time the population has increased until there are now about 1,000 people residing in the village. The business of the railroad company has increased in proportion, and it became necessary from time to time to make several additions to the stock-yards in order to accommodate the increased business; the last addition being made about six years ago. The station and the stock-yards were built originally in close proximity. There was no good reason at that time why they should not have been so situated; however, as population increased and business grew, it was entirely natural and proper and to be presumed, in the usual course of events, that the business houses of the community would be erected in the neighborhood of the station, and that this would form the nucleus around which the village would grow. This was what actually occurred. The evidence shows the village, or at least that part of it near the railroad and stock-yards, is built upon land which is almost level; that the railroad company in endeavoring to prevent the nuisance has filled in the stock-yards with broken stone, which has made the floor almost impervious to water and elevated it above the ad
The decree of the district court enjoined the defendant for maintaining stock-yards within two blocks from the place where the same are now located. The defendant complains that the decree is so indefinite and uncertain in its requirements that it should be reversed. The principal
The judgment of the, district court is therefore
Affirmed.