Lorain v. Josephine Rolling

14 Ohio C.C. Dec. 82, 3 Ohio C.C. (n.s.) 660, 1902 Ohio Misc. LEXIS 226

• Court: Lorain Circuit Court
• Decided: October 12, 1902
• Status: Published

Opinion

CALDWELL, J.

The city ot Lorain bought outside of the city limits twelve acres of land and was about to erect on it a structure called a pesthouse, when this action was brought to restrain the erection thereof on this piece of land by the defendants in error, Josephine Rolling and others, who have property adjoining, or at least across the road from the property in question.

In the trial ol the case it was contended that before grounds could be obtained for a pesthouse outside of the limits of the corporation establishing the pesthouse, that permission must be had from the trustees of the township where it was to be established, it outside of the corporation establishing it, and that this consent was not obtained, and, that being true, the city of Lorain was proceeding unlawfully, and that it was proper and right to restrain its unlawiu'l áction.

On the other side, the city of Lorain contended in establishing a pesthouse that it was not acting under the law for establishing a place for sanitary plants; but the two were entirely separate and distinct, and in procuring the grounds and establishing a pesthouse the consent of the municipality or public authorities where it was established, if outside of the city or village, was entirely unnecessary, and, hence, the law pertaining to sanitary plants did not apply. The court below held the law pertaining to sanitary plants did apply.

Now the plaintiffs below, in presenting their case, made this legal point that I have spoken of, as to which law applies, and then offered no evidence, as to whether or not this was a nuisance. They undertook to offer some evidence that it would reduce the value of property in that neighborhood, but the only witness called was unable to say, hence, nb evidence was obtained upon that point.

Then the delendant proceeded to show that establishing this pest-house would not render that neighborhood unhealthy or liable to contract contagious diseases frqm parties who were placed in the pesthouse, and the testimony, so far as the defendant below was concerned, was quite conclusive upon that point. But the court below rendered judgment against the city of Lorain and in iavor of the plaintiffs below, and the city of Lorain files the petition in error to reverse that judgment in this court.

There is only one question we are concerned with, and yet we may discuss two, as it will lead to the right conclusion, we think, in this case.

What statute applies ? It is contended that Sec. 1692 Rev. Stat., subdivision 23 or paragraph 23 giving general powers to municipalities, bestows upon Lorain the authority to establish a pesthouse, and it does in direct terms give that authority. Then Sec. 2169 Rev. Stat. states where and how that pesthouse may be established, and that puts no restrictions upon the village, so far as obtaining the consent of other municipalities or other authorities if the pesthouse is built outside of the city, and that has been the law for a long time. Then Sec. 2142 Rev. Stat., with which the court below held that the city must comply in obtaining the consent of the authorities where the grounds were established outside the city, the court held to apply to this case. Section 2169 Rev. Stat., applies to pesthouses; there is no question about that. The court below held that Sec. 2142 Rev. Stat. also applied. Section 2142 Rev. Stat. is found in 94 O. L. 342 and also again on page 383; but there is no difference in the two, they both amend Sec. 2142 Rev. Stat. There is no difference so far in the sections we desire to consider; they are precisely the same. Section 2142 Rev. Stat. pertains to quarantine grounds controlled by the city.

“Any city, village, hamlet or township may establish a quarantine ground or grounds, within or without its own limits, but if such place be without its limits, the consent of the municipality or township within which it is proposed to establish it, shall be first obtained; and the board of health within the city, village, hamlet or township having quarantine grounds or dump grounds, shall have exclusive control of the same.”

If this pertains to quarantine grounds then it is clear that the consent of the township where it is established must be obtained, obtained perhaps through the trustees, but it does not state exactly how; but the trustees are the representatives of the township and might give consent, the law probably implies that. But that is not necessary to the consideration of this case, but after consent is thus obtained and the grounds are established, then the corporation establishing them has control.

The title to the-act as iound in the session laws is, ‘‘To amend Section 2142 Revised Statutes ol Ohio, providing ior the control of quarantine grounds and relating to the power of boards of health, enabling municipalities to erect and maintain sanitary plants.” That is, the purpose ot the act is, to enable a corporation or municipality to acquire quarantine grounds, first, and then ,in addition to that to erect thereon a sanitary plant.

The object of a sanitary plant is clearly defined in the act, as is found in the act itself, and also in the general statutes. Section 2142a Rev. Stat., definition of sanitary plant : ‘‘The expression ‘sanitary plant,’ as herein used, shall be held to mean a structure with the necessary land and all the necessary fixtures and appliances and appurtenances required for the treatment and purification and disposal, in a sanitary manner, of either or both the liquid or solid wastes of the municipality.” So the act provides for. obtaining quarantine grounds and for building a sanitary plant thereon, and then the grounds and the structure together are to be known as the sanitary plant.

Well, after obtaining this ground, the act providing that buildings may be erected, and machinery, appliances and appurtenances acquired, necessary for the disposal, in a sanitary and economic manner, ol the sewage and garbage, night soil, dead animals, oflal, spoiled meats, and fish or any putrid substance, or any liquid or solid wastes, or any substances injurious to health ot the municipality. This, then, seems to be a plant simply for taking everything that is full of microbes and deadly poisons and injurious to health out to, and by some sort of machinery purifying it and making it healthy. That is all it is, destroying the poisonous gases and poisoned substances in these refuse matters of all kinds. It has nothing to do whatever with a pesthouse, and the court erred in holding that this assent must be obtained of the township where it was built.

Now certain evidence was taken, and as this case will have to be remanded, perhaps it is well enough to discuss it very briefly. This pesthouse is erected by authority of law, and certain restrictions and provisions are made in regard to the manner of establishing, erecting and using it. Therefore, the mere erecting of a pesthouse cannot be an unlawful thing. The mere erecting not being unlawful, it cannot be a nuisance per se.

But if a method is pursued that will necessarily make it dangerous beyond that already contemplated by the law, then it may be a nuisance, and before actual using might be condemned by the authorities and they be enjoined from establishing it. But if the mode prescribed and manner contemplated has been pursued, or if no mode or manner is definitely pointed out by the law, if that generally approved is pursued, then there can be no injunction and no declaring it a nuisance until it is wrongfully used. If it is so negligently used, so carelessly used and so used contrary to the intent of the law, it may become a nuisance, and it may be then enjoined. And that is the whole law of this case as I understand it. Of course I am not committing the court on what I say now, and the case must be reversed and remanded for a new trial.