Supreme Court. Erie General Term.

February, 1867.

Daniels, *Marvin*and *Davis,*Justices.

#### Samuel H. Taylor, Plaintiff in Error, *v.*The People, Defendants in Error.

On the trial of an indictment for nuisance, evidence of the condition of the premises in question, after the finding of the indictment, is not admissible. But a judgment will not be reversed on the ground of the admission of such evidence, if it appears from the bill of exceptions that it could have caused no legal injury to the defendant.

To convict of nuisance, it is not necessary to establish: any criminal intent..

It is no defense to an indictment for nuisance that the slaughter-house alleged to constitute it was built remote from habitations and public roads, and that the persons suffering from it afterwards built their dwellings within the reach of its stench or noisome effects.

It is only where an indictment charges the business itself to be a nuisance, and avers its continuance, that a judgment can be given, on conviction, enjoining the defendant from continuing the business.

The plaintiff in error was tried and convicted in the Court of Sessions of .Orleans County, upon an indictment charging him with the offense of creating and maintaining a nuisance. The indictment contains two counts. The first charges that the plaintiff in error on the 1st of April, 1866, and on divers days and times between that day and the finding of the indictment, at the town of Barre, in Orleans county, unlawfully and injuriously did kill and cause to be killed divers large numbers of cattle, hogs, sheep, &c., near to the dwelling houses of divers persons then and there inhabiting the same houses, and near to a certain public road and highway, over and upon which large numbers of persons daily pass and repass. And that he unlawfully and injuriously did cause' and permit the skins, flesh, bones, blood, entrails, &c., of said cattle, sheep, hogs, &c., to be .and remain near to the said dwelling houses, and near to the said public road"and highway, *340for a long space of time, to wit: for the space of one month; whereby divers noisome and unwholesome and offensive smells did then and there arise from the said skins, flesh, bones, blood, &c., so that the air was then and there greatly corrupted and infected thereby, to the great damage and common nuisance of, &c.

The second count charges that the plaintiff in error, on the 1st of April; 1866, and from thence until the finding of the indictment, near to the said dwelling houses and highway, certain buildings, barns, pens, outhouses, yards and grounds for the purpose of slaughtering and preparing for market hogs, sheep, &c., before that time erected, set up and enclosed, by certain persons to the jurors aforesaid unknown, unlawfully, wilfully and injuriously did continue, and yet doth continue, and within and upon the said buildings, barns, &c., willfully, unlawfully and injuriously did kill and cause to be killed divers large numbers of cattle, hogs, sheep, &c., and within and upon the said buildings, &c., willfully, unlawfully .and injuriously did cause and permit the skins, flesh, bones, blood, &c., of and from the animals so killed to lie and remain for a long space of time, to wit: for the space of one month; whereby divers noisome, offensive and unwholesome smells did then and there arise from the said skins, flesh, bones, &c., so that the air was then and there greatly corrupted and infected thereby, to the great damage and common nuisance of all the good and lawful citizens, &c.

The prosecution proved that the plaintiff in error owned a piece of land at the west bounds of the village of Albion, on which he had kept and occupied a slaughter house since the first of April, 1866—where he had slaughtered cattle, hogs, sheep, &c., for his meat market, kept and carried on in the village. That the slaughter house was situated within about five rods of a public highway, on which one hundred teams passed along daily. That a number of persons resided in the vicinity, and within from *341fifty to one hundred and twenty rods of the slaughter house. There were two other slaughter houses near that of the plaintiff in error. And that, from the first of April, 1866, to the finding of the indictment, the stench from the slaughter houses extended to the dwellings of those persons who resided in the vicinity—“ part of the time very bad; and in some cases the doors and windows had to be closed.” And that it was very offensive in passing along the highway. And, about the. middle of April, twenty-five loads of offal manure and putrid meats which had accumulated during the winter previous, were drawn from the defendant’s premises, during which the stench was much greater, making one man sick, who was working one hundred rods east of the slaughter house.

The prosecution offered to prove the condition of the slaughter house premises from the finding of the indictment to the time of the trial. To this the plaintiff in error objected. The court overruled the objection, admitted the evidence, and the plaintiff in error excepted. Under this offer and ruling, the prosecution proved that the stench could be smelt at Ballard’s house—which was fifty-five rods east of the slaughter house—two days in each week, during the summer; and that it was generally as offensive after as before the finding of the indictment. The stench was spoken of by the witnesses as that proceeding from the slaughter houses, without distinguishing between them, which could only be done when the person was upon the lot of the plaintiff in error. The plaintiff in error gave evidence tending to show that his slaughter house and the premises around it were kept clean and wholesome; and that some of the houses, occupied in the vicinity, were erected after his premises were devoted to the business complained of.

The court instructed the jury that if they concluded that the stench from the defendant’s slaughter house was offensive and disagreeable—a great nuisance to the neigh*342bors, or to the passers-by on the highway—they should convict the defendant. To which his counsel duly excepted. The court also instructed the jury that they could only take into consideration the evidence concerning the condition of the premises after the finding of the indictment for the purpose of ascertaining the intent of the defendant, and not for any other purpose.

The counsel for the plaintiff in error requested the court to instruct the jury that if the slaughter house was built remote from habitations and public roads, and the persons affected afterwards built their dwellings within the reach of its stench and noisome effects, he could not be convicted. The court declined so to charge, and the counsel for the plaintiff in error duly excepted.

The jury found a verdict of guilty, on which the court pronounced judgment by way of fine, and also that the plaintiff in error be enjoined from continuing the business of slaughtering animals at the slaughter house described in the indictment; and that he be further ordered to remove and discontinue the nuisance of which he was found guilty, within sixty days, otherwise that a precept go to the sheriff requiring him to abate it at the cost of the defendant. Upon this judgment the defendant brought a writ of error to this court.

*John H.*White, for the plaintiff in error.

*J. M. Thompson*(District Attorney), for defendants m error.

*By the Court,*Daniels, J.

The evidence which the court allowed to be given showing the condition of the premises in question, after the finding of the indictment and down to the time of the tial, should not have been admitted. It was entirely foreign to the issue the jury were to try, and would necessarily lead to a reversal of the judgment if it were not entirely certain that the *343plaintiff in error could not have been harmed by it. The court, in its charge, withdrew this evidence from the consideration of the jury, so far as it might have any tendency to establish the commission of the offense, leaving them at liberty to consider it only as bearing upon the intention of the accused. To this use of it by the jury, the plaintiff in error would have no reason to complain, because it was not necessary that the prosecution should satisfy them that any criminal intent whatever existed. If he had created and maintained a public nuisance, he was guilty of the offense charged, even though he had done so with the best intention. Whether the direction of the court to the jury to disregard the evidence improperly allowed to be laid before them would correct the error of admitting it, presents a more grave and difficult question. It was the opinion of Mr. Justice Paige, in the case of *McNight*v. *Dunlage*(1 *Seld.,*537), that it would; but the question was left undecided by the court. Other authorities might be given tending to countenance a different conclusion, but a reference to them is unnecessary in this case, because the bill of exceptions discloses another ground upon which the exception to that evidence may be satisfactorily answered.

The bill of exceptions contains a statement that the facts were proved, which it was claimed on the trial established the offense charged in the indictment. And if they were proved as so stated, they were not open to controversy or question by either the court or jury. The only question then arising would be as to their legal effect. If they were sufficient to constitute the offense in law, there was but one duty left to the court and jury, which was to convict the accused, and that, too, without reference to the other evidence that might have been given in the case. The facts which are stated as having been proved on the trial, and which, of course, were not open to question, were that the accused slaughtered animals for his meat *344market on the premises referred to, within the hounds of the village of Albion, distant from fifty-five to one hundred and twenty rods from the dwellings of the persons residing about there, within five rods of a highway on which one hundred teams passed every day, and that the stench extended to such dwellings and was encountered by the persons passing on the highway, and was so offensive sometimes as to require the doors and windows of the dwellings to be closed; and that offal, manure ,and putrid meat accumulated to such an extent during the winter that when it was removed in the spring the stench was much greater, rendering one man sick while at his work at the distance of one hundred rods from the slaughter house. It is not necessary to refer to authorities for the purpose of maintaining the legal conclusion that this was a nuisance within the well-settled rules relating to this class of cases. It clearly rendered the enjoyment of life and property uncomfortable and unwholesome. And such being the state of the case prior to the time of finding the indictment, the proof of the condition of the premises of the accused after that, which certainly was shown to be no worse than before, could not have worked any legal injury to him. And the admission of that evidence, although a legal error, presents no substantial ground for reversing the judgment. *(Shorter*v. *People*(2 *Comst.,*193.)

The supposition that persons who erect and occupy their dwellings where they may be affected by a nuisance already erected and maintained, have no legal right to complain of the annoyance it may occasion them, seems to have been derived from what was incidentally and unnecessarily said by Abbott, Ch. J., in the case of *Rex*v. *Cross*(2 *Car. and*Payne, 226). The case was decided at Nisi Prius, and this point was in no manner involved in it. And what was said upon it is in conflict with *Orunden’s*case (2 *Camp.*89), and *Sudley’s*case *(Sid.,*168; *Roscoe’s Crim. Evid..*795); and with the decision of the Court of General Sessions of *345New York City, in the case of *Lynch*(6 *City Hall*Sec., 61). Such a doctrine would render the property of others subordinate to the purposes of him who might, before they had erected their dwellings, have devoted his own to an offensive and unwholesome business. There is no sound principle of law that will protect any man in thus depriving others of the substantial use and enjoyment of their property. A person erecting a nuisance upon his own property, when all other human habitations were so far removed from it as not to be annoyed or disturbed by the nuisance, would not be indictable for the erection merely because others afterwards took up their residence within the reach of its noisome and unwholesome vapors; for while it annoyed no one it could not strictly and legally be affirmed to be a nuisance. But after the adjacent territory should become devoted to domestic or business uses, and the inhabitants should be disturbed, annoyed and rendered uncomfortable by the continuance of the establishment, no good reason would exist for protecting the person then maintaining it from an indictment and conviction for a nuisance on account of such continuance. While an offensive or unwholesome trade or business is carried on at a point so remote from others as in no manner to affect or disturb them, the pursuit is lawful; but it necessarily becomes unlawful whenever the adjacent owners may so far. devote their own property to the purposes of business or residence as to render its continuance incompatible with such purposes. This necessarily results from the legal principle which secures to all the right of devoting their property to the ordinary uses to which property is appropriated. Hence, when one person makes such a use of his property as will preclude others who are near him from deriving any substantial benefit or enjoyment from that which they possess, the law wisely intervbáes and prevents it, for the promotion of the general good. And that intervention is as necessary and *346justifiable whether the act requiring it consists of an unlawful maintenance and continuance only, as it is where an uhlawful creation or erection of the disturbing cause is added to that. The exception taken to the refusal to charge must therefore be overruled.

But as to that part of the judgment which enjoins the the accused from continuing his business, and directs the abatement of the nuisance, different considerations are presented. It is only where the indictment avers a continuance of the nuisance, and where it shows the business itself to be of that character, that a judgment like that rendered in this case can be proper. *(Rex*v. *Pappineau,*1 Strange, 678; *Munson*v. *The*People, 5 Parker, 16.) The indictment in this case does neither. It avers that the plaintiff in error unlawfully and injuriously slaughtered his animals at the slaughter house in question, but not that any annoyance or disturbance of the public was caused by that. It was from the offal and other refuse material which he caused and permitted to be and remain near the dwellings and the highway that the unwholesome and offensive stenches are averred to have arisen, which corrupted and infected the air, and created the nuisance under this allegation of the offense. The court had no power whatever to restrain the plaintiff in error from continuing the business of slaughtering animals at his slaughter house. And the cause which is thus alleged to have constituted the nuisance is averred to have remained a long space of time, to wit: for the space of one month; which by no rule of construction, however liberal, can be held to aver a continuance of the nuisance beyond that. From this manner of charging the offense, it is clear that the record furnishes no ground on which that part of the judgment can be maintained which enjoins the plaintiff in error from continuing the business of slaughtering animals at his slaughter house, and which directs the abatement of the nuisance. The case was one for fine and imprisonment, or either, as *347the court deemed proper, and for nothing beyond that. So much of the judgment as directs an abatement of the nuisance, and enjoins the plaintiff in error from continuing his business, should be reversed; and, as so modified, the judgment should then be affirmed.