McCay, Judge.
1. Section 4027 of the Revised Code, provides that “A public nuisance may be abated on the application of any citizen of the district, and a private nuisance on the application of the party injured.” Coining, as this does, immediately, next after the sections pointing out the mode of abating public nuisances, it is impossible to say that a private nuisance cannot be abated. Abated is a technicle term. Neither an action for damages nor an injunction can abate a nuisance. An injunction may prevent, and a verdict for damages may punish, but neither of them will abate a nuisance. We are clear, therefore, that under the Code, a private nuisance may be abated by the same tribunal, and under the same provisions as are provided in sections 4023, 4024, etc., of the Code.
2. We think the Judge was bound to judge of the sufficiency of the petition from the facts stated in it. The pro[133]*133tection given by law to the other side is the affidavit and bond of the petitioner. If the petition, properly verified, makes such a case as requires the writ, it ought to issue. The only mode of contradicting the petition provided' by law, is the official return of the inferior tribunal, made as the law requires. It was, therefore, error in the Judge to hear and consider what came to his office out of the hands of the other party, and not as an official return to the certiorari. The plaintiff in certiorari has, under section 3994 of the Code, a right to traverse even the return, and -it is entirely irregular to permit his statement in the petition to be controverted or supplemented by his opponent on his application for the writ.
3. We think this petition makes out a prima facie case. The proceeding the defendant is called upon to answer ought to notify him what is complained of. A nuisance is a very broad term. The proceeding to abate is a very harsh remedy, and everything should appear on the face of the proceedings to justify it. Fair notice of the nature of the complaint ought to be given. The defendant may, perhaps, if it be pointed out in what manner he is hurting the complainants, take efficient means to stop the evil. We do not think the ordinary use of a guano depot is a very serious matter. Every day’s experience shows that every variety of these manures are carried upon railroads, stored in houses, sold in market, handled by employees, hauled through the streets and put out upon land without serious annoyance to anybody. We suspect the stomach which sickens at the smell of an article now in such common use, which, in its worst form — ^Peruvian guano — is carried by the ship-load thousands of miles, is not a'stomach of an ordinary kind. It is too nice, perhaps, from some disease, for ordinary life. It is not against exceptionable organizations that the nuisance arises. To make a thing a nuisance it ought to be of such a character as would hurt or annoy in the legal sense of those words — ordinary people — not nice, susceptible, sickly people.
4. We think, too, that the judgment of the Court directing the removal of the house and affixing a fine was beyond [134]*134the necessity of the case. Why should the house be removed? Cannot the nuisance be removed by removing the storage? Nor had the Court, in the capacity in which it sat, power to fine. We think this certiorari ought to have been granted.
Judgment reversed.
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