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(120 Wash, 527, 207 Pac. 2.)

ROBERT HUGHSON and Wife, Appts.,

V.
CHARLES WINGHAM, Respt.

Washington Supreme Court (Dept. No. 2)

May 23, 1922.

(120 Wash. 327, 207 Pac. 2.) Nuisance — slaughterhouse as.

1. The mere presence of a slaughterhouse within 300 feet of a dwelling does not constitute a nuisance.

(See note on this question beginning on page 329.] - when abated.

2. The operation of hogpens and reasonable opportunity to make their a slaughterhouse will not be abated as operation sanitary. a nuisance until the owner has had a [See 20 R. C. L. 449.]

APPEAL by plaintiffs from a judgment of the Superior Court for Stevens County (Sessions, J.) dismissing an action brought to restrain the operation of a slaughterhouse by defendant. Affirmed.

The facts are stated in the opinion of the court. Messrs. W. Lon Johnson and Wentz Main, J., delivered the opinion of & Bailey, for appellants:

the court: The overwhelming weight of the This action was brought to retestimony justified a decree abating

strain the operation of a slaughterthe slaughterhouse of defendant as a

house, plaintiff claiming that it connuisance.

stituted a nuisance. The trial bePennsylvania Lead Co.'s Appeal, 96

fore the court without a jury rePa. 116, 42 Am. Rep. 534, 11 Mor. Min.

sulted in a judgment dismissing the Rep. 84; Deaconess Home & Hospital

action. From this judgment the v. Bontjes, 207 Ill. 553, 64 L.R.A. 215, 69 N. E. 748; Asia v. Pool, 47 Wash.

plaintiffs appeal. 515, 92 Pac. 351, 15 Ann. Cas. 104; The appellants own, reside on, Everett v. Paschall, 61 Wash. 47, and operate a farm consisting of ap31 L.R.A.(N.S.) 827, 111 Pac. 879, proximately 125 acres, located about Ann. Cas. 1912B, 1128; Densmore v.

1} miles south of the city of ColEvergreen Camp, 61 Wash. 230, 31

ville in Stevens county. L.R.A.(N.S.) 608, 112 Pac. 255, Ann.

The respondent is the owner of Cas. 1912B, 1206; Goodrich v. Starrett, 108 Wash. 437, 184 Pac. 220; Grant v.

about 100 acres of land immediately Rosenburg, 112 Wash. 361, 192 Pac. adjoining that of the appellants. 889, 196 Pac. 626.

During the spring or early summer Messrs. F. Leo Grinstead and L. B. of the year 1920, the respondent conDonley, for respondent:

structed a slaughterhouse upon the The question of nuisance or no nui

land owned by him for the purpose sance cannot be determined by refer- of slaughtering cattle, sheep, and ence to the rules of common law, but hogs to supply the retail meat mareach case must be considered upon its ket which he conducted in Colville. own facts.

The Inland Empire highway traDensmore v. Evergreen Camp, 61 verses both the land of the appellants Wash. 230, 31 L.R.A.(N.S.) 608, 112 and respondent, running in a north Pac. 255, Ann. Cas. 1912B, 1206; Ever

and south direction. The dwelling ett v. Paschall, 61 Wash. 47, 31 L.R.A. (N.S.) 827, 111 Pac. 879, Ann. Cas.

of the appellants is located on the 1912B, 1128; Goodrich v. Starrett, 108

east side of the highway, and their Wash. 437, 184 Pac. 220; Asia v. Pool,

barns and other buildings located on 47 Wash. 515, 92 Pac. 351, 15 Ann. the opposite side. The slaughterCas. 104.

house is located about 300 feet northwest of the appellants' dwell- the weight of the testimony is to the ing and on the west side of the high-effect that the odors from the plant way, the dwelling house being of an do not permeate the air at a diselevation of approximately 60 feet tance from the plant of more than above that of the slaughterhouse, 50 feet and that the plant is not the which is located on what is re- cause of the menace from flies, if ferred to as the “valley floor.” The such exists. It is true that a plant barn and other outbuildings of the of this character, as shown by the appellants are immediately to the evidence, has a smell or odor pecusouth of the slaughterhouse. Re- liar to itself, the same as in other spondent, as the evidence shows, packing houses. We think the eviconstructed the slaughterhouse with dence shows that the plant is well concrete floors and walls, and it is a constructed and operated in a sanimodern building of its kind, compar- tary manner. Complaint is made, in ing favorably with other slaughter- this connection, with reference to houses located at or near much the hogpen adjacent to the slaughlarger towns than Colville. The ap- terhouse wherein are kept and fed pellants protested against the erec- from fifteen to thirty head of hogs. tion of a slaughterhouse at this par- If the operation of the plant were ticular place, and after its operation such as to cause offensive odors and began which was on or about the the presence of flies, and if the hog17th of August, 1920, claimed that pen was in such a condition that it offensive odors came therefrom and would constitute a nuisance to the disturbed them in the enjoyment of appellants, the remedy would be not their home; also, that it was a place to abate the operation of the slaughwhich attracted flies, which caused terhouse until such the appellants discomfort and en

time as the respond- When abated. dangered their health and repose. ent had had an op

Speaking generally, the appellants portunity to operate it in an entireseem to make three principal con- ly sanitary manner. With reference tentions: First, with reference to to a slaughterhouse, in Grant v. the offensive odors; second, with Rosenburg, 112 Wash. 361, 196 Pac. reference to the flies; and, third, 626, upon rehearing in banc it was that the slaughterhouse as such is a said: "It follows that, before an menace to their comfort, repose, and order may issue destroying the health, and therefore should be plant of appellants, a reasonable abated. Upon the question of the time and opportunity should be odors and flies the evidence is direct- given to the appellants to obviate the ly conflicting. The trial court made noxious odors." no findings of fact or conclusions of

So, if the appellants are to prevail law, but simply entered a judgment in this action at this time, it must be of dismissal. From the remarks of by reason of the fact that the locathe trial judge during the trial as

tion of the slaughterhouse 300 feet they appear in the record, it is ap

distant from their dwelling is a menparent that he recognized that if the

ace to their comfort, repose, and plant gave off offensive odors, as health. It is undoubtedly true that contended for by the appellants, the presence of a slaughterhouse so and was a place which attracted

near to a dwelling is not pleasant to flies which disturbed the appellants

the esthetic sense. But this in itself in their comfort and repose, it would would not be sufficient to constitute constitute a nuisance. In dismiss

a nuisance. In Rea v. Tacoma ing the action, it is apparent that he Mausoleum Asso. 103 Wash. 429, 1 was of the opinion that the weight A.L.R. 541, 174 Pac. 961, it was of the testimony was against the ap- held that an addition to the mausopellants upon these questions.

ieum would not be restrained as a Without reviewing the evidence in nuisance when unattended by injuridetail, we are of the opinion that ous or offensive drainage or fumes

1

(120 Wash. 327, 207 Pac. 2.) sensible to the complaining party. terhouse, erected as this. one was In that case the cases of Everett v. 300 feet from the dwelling of the Paschall, 61 Wash. 47, 31 L.R.A. appellant, would by (N.S.) 827, 111 Pac. 879, Ann. Cas. its mere presence house as.

- slaughter1912B, 1128, and Densmore v. Ever- constitute a nui. green Camp, 61 Wash. 230, 31

sance. If at any time in the future L.R.A.(N.S.) 608, 112 Pac. 255, the slaughterhouse should be operAnn. Cas. 1912B, 1206, were noticed, ated in such a manner as to constiand held not to be in conflict with tute a nuisance, the appellants will the principle there announced. If have a remedy in the courts. the presence of the addition to the

The judgment will be affirmed. mausoleum which was in the residence district of the city of Tacoma

Parker, Ch. J., and Mackintosh did not in itself constitute a nui

and Hovey, JJ., concur. sance it cannot be held that a slaugh- Petition for rehearing denied.

ANNOTATION.

Slaughterhouse as nuisance.

as

I. Where expressly permitted by ordi- and in reliance upon its provisions, nance, 329.

the petitioner proceeded to, and did, II. Where expressly forbidden by ordi

construct a packing house and other nance, 330.

necessary buildings for the slaughterIII. In absence of ordinance, 330.

ing of animals on the property de1. Where expressly permitted by ordi.

scribed therein, at a cost in excess of nance.

$50,000. After the slaughter or packThe location and maintenance of a

ing house had been constructed by the slaughterhouse in a city under express

petitioner in accordance with the authority of an ordinance cannot be

terms and conditions of the ordinance condemned public nuisance.

authorizing him to do so, the city reZimmerman v. Gritzmacher (1909) 53

pealed, or attempted to repeal, such Or. 206, 21 L.R.A.(N.S.) 299, 98 Pac.

ordinance. Subsequently another or875. In that case it appeared that the

dinance was adopted regulating the city, in pursuance of legislative au

slaughtering of animals and the inthority, passed an ordinance making

spection of meats intended for huit unlawful for any person to slaugh

man food within the city, in which ter animals for human food within the

it was provided generally that all city limits, or to erect or maintain a

animals intended for food should be slaughterhouse therein. While this

inspected and approved by officers ordinance was in force, and without

appointed by the city board of repealing or amending it, the common

health, both before and after slaughcouncil enacted an ordinance granting

tering. This last ordinance was in efthe petitioner and his assigns the

fect at the time the petitioner was right to establish, conduct, and carry

prosecuted for a violation of the first on a slaughter or packing house on

ordinance making the slaughter of certain described property belonging

animals within the city limits unlawto him within the city limits, under

ful. The court said: “The slaughter certain conditions and restrictions as

or packing house of petitioner was, at to the manner in which the business

the time of his arrest, being mainshould be conducted, and declaring

tained by the consent and authority of that the previous ordinance should

the municipality. He cannot be prosenot be applied to or affect the estab- cuted by the city for doing that which lishment or carrying on of the busi- it expressly sanctions. By $ 6 of the ness thus authorized. Immediately abattoir ordinance, the Pacific States upon the passage of this ordinance, Packing Company, which was then in

possession of and operating the Zim- a slaughterhouse is not per se merman plant, was designated as the nuisance, and that it is possible for 'Portland Abattoir,' where animals the municipality to exceed its power may be taken for inspection and by declaring, arbitrarily, that to be a slaughter, thus expressly authorizing nuisance which, neither from its the slaughtering of animals at such character nor the manner in which it place. As long as this ordinance re- is controlled or conducted, is a nuimains unrepealed, the city cannot sance. However, a slaughterhouse maintain a criminal prosecution erected or conducted in violation of against one who is observing its pro- the ordinance becomes a nuisance, visions and doing that which it au- though it may not have been such in thorizes.

The right of a state the absence of such ordinance. Nor or municipality, by virtue of authority can it be said that this appeal may granted to it by the state, to regulate be maintained, because the ordinance, slaughterhouses or to prohibit their so far as it declares a slaughterhouse erection within certain prescribed within the town limits to be a nuilimits, is because they are or may be- sance, is an arbitrary declaration come injurious to health or offensive against a business not otherwise a to the public, and therefore a public nuisance.

nuisance. The penalty from which nuisance. But when express legisla- the appeal is prosecuted is for maintive authority is given for the erection taining a slaughterhouse within the and maintenance of such business, it town limits. As we have said, the cannot become such a nuisance." right to direct the location of such

houses is given by the letter of the II. Where expressly forbidden by ordi.

legislative grant, and the penalty is nance.

assessed for the failure to obey the Though, under a general grant of direction that such houses shall not power over the subject, a common be located within the corporate limits. council has no authority to adopt an The power given has been exercised ordinance declaring a thing to be a by excluding them from a particular nuisance which, in fact, is not one, yet locality. This is but the equivalent in doubtful cases, depending on of a direction that they shall be lovariety of circumstances requiring an cated without the corporate limits." exercise of judgment and discretion, In Rex v. Watts (1826) 2 Car. & P. their action is conclusive, and, pursu- (Eng.) 486, 31 Revised Rep. 686, unant to such grant, they are empowered der a private act of Parliament declarto adopt an ordinance declaring a ing that all houses for the slaughterslaughterhouse within the corporate ing of horses within 1,000 yards of a limits to be a nuisance. Harmison v. certain workhouse were to be deemed Lewistown (1894) 153 Ill. 313, 46 Am. public nuisances and removed, but if St. Rep. 893, 38 N. E. 628; Rund v. they existed before the act, the ownFowler (1895) 142 Ind. 214, 41 N. E. ers were to receive a compensation, 456. In the last-mentioned case the it was held that on an indictment court said: “The ordinance in question framed at common law, with counts on declares that a slaughterhouse, within that act, the defendant might be conthe corporate limits of the town, shall victed if he so carried on the trade as be deemed a public nuisance, and the to make it a public nuisance, and that penalty prescribed is intended to pre- he was not then entitled to any comvent the establishment or maintenance pensation. of such nuisance. The general grant of power following that first quoted

III. In absence of ordinance. is of great scope, and manifests the Butchering cattle is a legitimate intention of the legislature to intrust business, and must necessarily be carto the municipality large discretion ried on in the vicinity of each city or in the enactment of ‘measures for the town, the inhabitants of which need preservation of the public health.' It to be supplied with meat. And, conis possibly true, as counsel insist, that sequently, a pen in which to keep the

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live cattle, and a house in which to slaughter them, are not per se a public or private nuisance, unless established so near the center of population or to a private dwelling place as necessarily and unavoidably to hurt and annoy the public, or invade and do damage to the private vested right of an individual. Reichert v. Geers (1884) 98 Ind. 73, 49 Am. Rep. 736; Beckham v. Brown (1897) 19 Ky. L. Rep. 519, 40 S. W. 684; Ballentine v. Webb (1890) 84 Mich. 38, 13 L.R.A. 321, 47 N. W. 485; Pruner v. Pendleton (1881) 75 Va. 516, 40 Am. Rep. 738. And

the reported (HUGHSON v. WINGHAM, ante, 327). But compare Atty. Gen. v. Steward (1869) 20 N. J. Eq. 415. Compare also the dictum in Green v. Lake (1877) 54 Miss, 540, 28 Am. Rep. 378.

In Ballentine v. Webb (1890) 84 Mich. 38, 13 L.R.A. 321, 47 N. W. 485, supra, the court said: “We have arrived at the conclusion that the defendant's business is not of such a character as, when properly conducted, to constitute a nuisance in the neighborhood where it is situated. This is practically conceded by complainants; and, if it were not, we should not be willing to hold, as a matter of law, that a, business so necessary and important as that in which defendant is engaged, and which his own profit and the convenience of the city require should be conducted within reasonable distance of the market which he supplies, was of necessity a nuisance, independent of the manner in which it was conducted."

Where a slaughterhouse is located a reasonable distance from the center of population, and from dwelling places of individuals, it can be regarded and treated as a nuisance, public or private, as the case may be, only when the business is conducted in such a negligent or reckless manner as to become offensive and hurtful to the public and individuals. Beckham v. Brown (1897) 19 Ky. L. Rep. 519, 40 S. W. 684.

So, an injunction will not issue to restrain the erection of a proposed slaughterhouse, where the affidavits

accompanying the petition fail to establish the fact that a nuisance will result therefrom. Sellers v. Pennsylvania R. Co. (1875) 10 Phila. (Pa.) 319,

According to many authorities, however, when a slaughterhouse is located in a thickly settled community, it is deemed prima facie a nuisance.

Indiana.-Reichert v. Geers (1884) 98 Ind. 73, 49 Am. Rep. 736.

Iowa. Bushnell v. Robeson (1883) 62 Iowa, 540, 17 N. W. 888; Rhoades v. Cook (1904) 122 Iowa, 336, 98 N. W. 122.

Kentucky.-Seifried v. Hays (1883) 81 Ky. 377, 50 Am. Rep. 167.

Louisiana. Villavaso v. Barthet (1887) 39 La. Ann. 254, 1 So. 599; Perrin v. Crescent City Stockyard & Slaughterhouse Co. (1907) 119 La. 83, 43 So. 938, 12 Ann. Cas. 903.

Maryland. - Woodyear v. Schaefer (1881) 57 Md. 1, 40 Am. Rep. 419.

Massachusetts. Compare Fay v. Whitman (1868) 100 Mass. 76.

New York. Catlin v. Valentine (1842) 9 Paige, 575, 38 Am. Dec. 567; Brady v. Weeks (1848) 3 Barb. 157.

Oregon. --See Portland Cook (1906) 48 Or. 550, 9 L.R.A.(N.S.) 733, 87 Pac. 772.

Pennsylvania. Smith V. Cummings (1851) 2 Pars. Sel, Eq. Cas. 92.

Virginia. - Pruner v. Pendleton (1881) 75 Va. 516, 40 Am. Rep. 738.

Slaughterhouses located in the midst of populous districts have been regarded generally as nuisances on account of the noxious vapors and noisome smells and stenches emitted therefrom.

Colorado.—Wright v. Ulrich (1907) 40 Colo. 437, 91 Pac. 43.

Connecticut. Bishop v. Banks (1865) 33 Conn. 118, 87 Am. Dec. 197.

Illinois.--Minke v. Hopeman (1877) 87 Ill. 450, 29 Am. Rep. 63.

Indiana.-Moses v. State (1877) 58 Ind. 185; Reichert v. Geers (1884) 98 Ind. 73, 49 Am. Rep. 736. See also Dennis v. State (1883) 91 Ind. 291.

Iowa.—Bushnell v. Robeson (1883) 62 Iowa, 540, 17 N. W. 888; Rhoades v. Cook (1904) 122 Iowa, 336, 98 N. W. 122.

V.

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