City of Kansas v. Sihler Hog Cholera Serum Co.

127 P. 540, 88 Kan. 164, 1912 Kan. LEXIS 30

• Court: Supreme Court of Kansas
• Decided: November 9, 1912
• Docket: No. 18,206
• Status: Published

Opinion

Per Curiam:

At the close of the opinion in this case (Kansas City v. Serum Co., 87 Kan. 786, 125 Pac. 70), it was said:

“We have nothing to consider but the petition itself and we think its allegations taken as true show that the place complained of is so conducted as to be a nuisance and that the plaintiff is entitled to a perpetual injunction to prevent the continuance thereof; also to prevent the hauling of garbage or other refuse through the streets so as to cause offensive odors to emanate therefrom. The question, however, as to the location of defendants’ business at some other place was not before the court and is not for determination.

“The judgment is modified, and is affirmed so far as indicated in the foregoing paragraph.” (p. 791.)

In their petition for rehearing the defendants insist that that part of the order enjoining them from keeping or maintaining more than ten hogs on the premises in question should be stricken out.

The language, “the place complained of is so conducted as to be a nuisance” (p. 791) necessarily has reference to the manner of conducting the place and not to the number of hogs there kept, and the judgment was modified accordingly, for the record shows no ground for complaint so long as the defendants, regardless of the number of hogs maintained, conduct the premises in question so that they do not constitute a nuisance.

The petition for rehearing is denied.