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Error from District Court, Pawnee County; | asked to sign a written lease or agreement before Justice Bayard T. Hainer.

to that effect. This he objected to because Action by the Jennings State Bank against the engine was not finished, and would not John Rapp. Judgment for plaintiff, and de be his until it was finished and at work in fendant brings error. Reversed and remanded. connection with the mill machinery for which McGuire & Clark and Fred S. Liscum, for

purpose it was purchased. Canfield told him plaintiff in error.

it would be his when finished, and wanted

him, as a matter of form, to sign a lease GILLETTE, J. This was an action brought for the use of it during the summer, which in the court below to recover upon three he did. This lease, or rental contract, whatpromissory notes, one for $305 and two notes ever it was, is not shown in the evidence, and of $275 each, the purchase price of certain

is referred to in the record simply as a mill machinery and a gasoline engine, exe

lease, without proof of its terms, its loss, cuted March 6, 1901. The defendant, to se however, being accounted for. In June folcure payment of these notes, gave a mort lowing defendant returned from Missouri, gage upon his farm, and a chattel mortgage, asked for his engine, and was informed that upon all the machinery purchased. The it was not finished, but could be ready for petition prays judgment for the amount of him on three days' notice. The defendant anthe notes, and a foreclosure of both mort swered that he would be seady to receive it gages. The answer admits the execution of on the following Friday, six days from that the instrument sued on, but denies considera time. The engine or mill machinery was tion therefor. The instruments were non

never delivered, so far as the record shows, negotiable, and defendant's defense there and there is no evidence showing that the fore good as against the plaintiff bank, to engine was ever completed. The action was whom the notes had been assigned, the tried to a jury, and at the close of defendnotes containing conditions which destroy ant's testimony the trial court sustained a their negotiability, and the president of the demurrer to the evidence offered in defense, bank being one of the contracting parties in as we suppose from the record upon the thethe sale of the machinery. It appears from

ory that the lease of the engine under the the evidence offered upon the trial that the circumstances was an acceptance thereof, defendant in the court below, now plaintiff in and amounted to an agreement acknowledgei ror, in October, 1900, executed the notes ing a completed contract, withdrew the case sued on at the solicitation of Trees & Can from the further consideration of the jury, field, Machine Manufacturers at Jennings, O. and entered judgment for the foreclosure of T., under the following circumstances : Mr. both the real and chattel mortgages, and Canfield, of the firm, held obligations against crdered a sale of the property to satisfy the certain mill machinery then in a building judgment. Motion for a new trial was overat Crystal, 0. T., which town of Crystal | ruled, and the case comes to this court upon was situated on a part of what had been error in the determination of the court beMr. Rapp's farm, on property controlled by low. Mr. Canfield.

It will be observed that the engine was In October, 1900, defendant Rapp, being not completed at the time this lease agreeat Trees & Canfield's machine shop at Jen ment was entered into, nor in fact four nings, Mr. Trees suggested to him that if months later, when the defendant demanded he had a gasoline engine like one they were possession of it. There is no proof that it using, or bigger, he could buy the mill at was sufficient to run the machinery for Crystal and run it, and he stated in reply which it was purchased, and we think it that if he could make a bargain with Canfield a violent presumption to hold that the lease for the mill, he would also buy a gasoline agreement solicited by Trees & Canfield was engine from them, and an agreement to when accepted intended by the defendant as that effect was entered into, the defendant an acceptance of the entire machinery, which thien and there executing his promissory had never been delivered to him. The lease rotes therefor, and in consideration of Trees at most refers only to the gasoline engine. & Canfield's verbal promise to build a gaso There was no tender of the possession of the line engine for him of sufficient power to mill machinery, and no conversation had at run said machinery as quick as they could. the time touching its delivery. The notes Trees & Canfield failed to build the engine when executed were wholly without considby the time the first note came due, Feb eration, as nothing of value was delivered ruary 1, 1901, and afterwards, on March therefor except the promise of Trees & Can6th, the defendant being about to go to the field to build a gasoline engine at some time state of Missouri for the summer, asked to in the future, and attach it to the mill maLave the notes taken up and new ones given chinery at Crystal, and thereafter deliver falling due in the future, the first one to fall the completed mill to defendant when shown due on September 1901, which was agreed to be in good running order. Nor, so far as to. At this time it was suggested to the de the record shows, was the consideration for fendant that Trees & Canfield would give the lease ever paid, tendered, or indorsed up him $95 for the use of the engine then partly on the notes. The defendant in error has constructed for the summer, and he was not favored us with a brief or statement in

forming the court upon what theory they re 2. SAME-ABATEMENT-ACTION TO ENJOIN. ly for the confirmation of the determination

Chapter 13, art. 10, Wilson's Rev. & Ann.

St., 1903, entitled, "An act to protect platted of the court below.

lands and townsite additions from nuisances" We assume that the judgment of the court provides : below must be affirmed, if affirmed, upon

“Sec. 134. It shall be unlawful for any perthe theory that the lease executed at the

son to maintain a slaughter house within less

than one-half mile of any tract of land platted time that the new notes sued on were execut into lots and blocks as an addition to any town ed amounted in law to an acceptance of the or city within the territory of Oklahoma, or to machinery as it then was, and was at that

maintain such slaughter house within one-half

mile of any tract of land platted into acre tiine, by force of the lease, a completed con

tracts for the purposes of being sold for resitract. An acceptance, to be good, must, of dence, and in which tracts of land have actually course, be such as to conclude an agreement

been sold for residence purposes."

"Sec. 136. The maintaining of any slaughor contract between the parties, i. e., an ac

ter house, or location and use of any grave ceptance to bind the parties must be uncon yard or cemetery in violation of the provisions ditional and unqualified, and intended as of this act, are declared to be a nuisance, and such where it modifies the terms of the orig.

any person owning real estate within any such

addition to a town or city, or within the lands inal agreement. Bennecke v. Insurance Co., platted and set apart to be sold for residence 105 U. S. 355, 26 L. Ed. 990. To hold that purposes, may maintain an action in the courts the lease at the time of its execution and to abate such nuisance and to enjoin their con

tinuance, and if it appears that they are being under the circumstances then existing was carried on in violation of this act, a perpetual intended as a waiver of the original con injunction shall be granted against the parties tract to construct the machinery, and was an

maintaining such nuisance.

"Sec. 137. It shall be the duty of any sheriff, acceptance of the unfinished machine, and

constable or other police officer to make comamounted to a delivery of the undelivered plaint against such nuisance and hasten its mill would be doing violence to sound reason, abatement as provided for in this act." and such construction could not be given

Held, that section 136 limits the persons au

thorized to bring an action under the act to the the transaction except upon proof satisfac

owners of real estate as described therein, and tory that such was the intent of the parties. an action brought by one who is not the owner It might, and probably would amount to a

of real estate as provided under section 136,

or an officer as provided under section 137, must waiver of damages for a failure to deliver

bring himself within the provisions of chapter the property in due time or within a reason 56, Wilson's Rev. & Ann. St. 1903, entitled, able time, but to say that it amounted in

"Nuisance." law to a present delivery and acceptance of

[Ed. Note.-For cases in point, see Cent. Dig.

vol. 37, Nuisance, $$ 64-66.] the unfinished machinery would be carrying the rule to an extent beyond any authority

(Syllabus by the Court.) we have been able to find. Whether or not Error from District Court, Kay County ; the transaction was intended by the parties before Justice Bayard T. Hainer. at the time as a closing of the unexecuted Action by John F. Weaver against Henry agreement existing between them is a ques Kuchler and Amelia Kuchler to abate a nuition of fact, which the defendant in the ac sance. Plaintiff secured a temporary retion had a right to have submitted to the straining order in the probate court, which, consideration of the jury under the instruc upon a motion to dissolve in the district tions of the court governing their delibera court, was modified. From the order and tions upon that subject, and a failure so to do judgment of modification, plaintiff appeals. was in the judgment of this court an error Affirmed. requiring the reversal of the case.

In the fall of 1900 the defendants leased This case is therefore reversed, and the

three acres of land on the S. 12 of the S. E.44 cause remanded with instructions to set aside

of the N. E. 44 of section 22, in township 28 the order overruling the motion for a new

N., of range 2 E. I. M., in Kay county, Okl. trial, and to allow the same. All the Justices

T., and located a slaughter house thereon, concurring except HAINER, J., who presided

and used it continuously for that purpose in the court below.

until restrained by the temporary writ issued in this action. In the fall of 1903 the

defendants purchased 20 acres of land, in(17 Okl. 189)

cluding the three acres above described, for WEAVER v. KUCIILER et al.

the purpose of having a suitable place to

feed and keep their live stock in conjunc(Supreme Court of Oklahoma. Sept. 5, 1906.)

tion with their slaughter house, the location 1. NUISANCE - WHAT CONSTITUTES-INJUNC of which was within less than a half mile TION. Where a slaughter house has been enjoined

from the corporate limits of the city of New as a nuisance, and, on the hearing of a motion kirk, and of a tract of land platted into lots to dissolve, the evidence shows that it is not a and blocks as “College addition” to said city, nuisance per se, and that it can be carried on and within less than a half mile of lands so as not to constitute a nuisance, the injunction will be modified so as to permit its usage

platted to be sold as residence lots and which

The in an unobjectionable manner.

were actually sold for that purpose. [Ed. Note.-For cases in point, see Cent. Dig.

plaintiff resided with his family about threevol. 37, Nuisance, 88 72–74.)

eighths of a mile from the defendant's slaugh

ter house on the S. E. 14 of section 27, in said slaughter house to remain and decay towrship 28 N., of range 2 E. I. M., a tract upon any part of said slaughter house premcontiguous to defendants' 20 acres, and out ises." From the judgment modifying the side the corporate limits of the city of New temporary order plaintiff appeals. kirk and its additions. A creek called

Moss & Turner, for plaintiff in error. "Spring creck” ran through and across the

L. Pinkham and W. S. Cline, for defendants premises of both parties, the plaintiff's dwell

in error. iny house being down stream from defendants' slaughter house, and situated about 20

GARBER, J. (after stating the facts). It rods back from the creek. Near the well

is here contenleil that the order and judying house is a spring from which plaintiff

ment of the distri«t court modifying the and his family procured their water for

temporary order of injunction should be set family purposes. Plaintiff averred the loca

aside and reversel for two reasons: First, tion of defendants' slaughter house to be

that the court committed prejudicial error in within less than a half mile from the cor

not passing on the sufficiency on the part of porate limits of the city of Newkirk, and

plaintiff's petition demurred to by the defrom a tract of land platted into lots, etc.,

fendants bei ore the motion to dissolve the and special injury to himself, in that the de

temporary writ was heard. The record shows tendants permitted to remain upon their

that the attention of the trial court was never premises in and near the slaughter house and

called to the demurrer on file, that both par(reek the offal. refuse and unsalable por

ties announced ready for trial without obtions of the animals slaughtered, a part of

jection, and the court proceeded to hear the which, through the creek, became scattered

evidence on the motion to dissolve. No obover and upon his premises, causing the wa

jection being raised in the court below, the ter in the spring to become unwholesome,

question cannot be raised here for the first and unfit for use, and that the decay and de

time. The general answer of the defendants, composition on the premises of both parties

however, waived their denurrer, and the created a foul, unwholesome stench and odor around his dwelling house, endangering the

party to whose pleading a demurrer is filed health of plaintiff and his family. The plain the demurrer. Penn. Co. v. Bond, 99 Ill. App.

cannot complain that ruling was not made on tiff prayed for a judgment permanently en

33.7; 6 Pleading and Practice, 38; Cyc. 2.79), joining the defendants from using their prem,

274, and authorities cited therein. ises for laughter house purposes. A tempo

The remaining error assigned is that the rary restraining order issued out of the pro

court erred in modifying the temporary orbate court on the 25th day of October, 1990.),

der of injunction. Plaintiff insists that, unthe date of the filing of the petition herein.

der section 131. art. 10, c. 13. Wilson's Rev. On the 20th day of November the defendants filecl their ansirer, which contained a gen

& Ann. St. 1903 entitled, "An act to protect

lands platted into residence tracts and aderal denial, also a demurrer to that part of

ditions to townsites from nuisances," the plaintiff's petition alleging the location of

maintenance of the slaughter house by the defendants' slaughter house to be within less than a half mile from the corporate limits of

defendants was a nuisance "per se.” The

sections relied upon, read as follows: the city of Newkirk and its additions. On

"Sec. 134. It shall be unlawful for any the 28th day of Yovember the defendants filed a motion to dissolve the temporary writ person to maintain a slaughter house within upon the grounds as set forth in their an

less than one-half mile of any tract of land swer, which was attached to, and made a

platted into lots and blocks as an addition part of, their motion. A partial hearing was

to any town or city within the territory of had on December 1st, and both parties or

Oklahoma, or to maintain such slaughter dered to submit additional evidence in the

house within one-half mile of any tract of form of affilavits. On the 30th day of De

land platted into acre tracts for the purposes cember, 1903, the matter came on for final

of being sold for residence. and in which liearing, and the court rendered judgment

tracts of land have actually been sold for resmodifying the temporary order issued, per

idence purposes." mitting the defendants to operate their

“Sec. 136. The maintaining of any slaughslaughter house, but enjoining them "from

ter house, or location and use of any gravepermitting any offal, refuse, or unsalable yard, or cemetery, in violation of the provimatter of said business thereof in any man sions of this act, are declared to be a nuisance, ner to be conducted into the stream running and any person owning real estate within through the defendants' slaughterhouse any such addition to a town or city, or withyard : and that said defendants, their agents, in the lands platted and set apart to be sold or their employés, are hereby enjoined from for residence purposes, may maintain an acpermitting any offal or refuse matter to ac tion in the courts to abate such nuisance, cumulate in, about, or near the said slaughter and to enjoin their continuance, and if it aphouse premises, and the defendants are fur pears that they are being carried on in violather enjoined from permitting any bones, tion af this act, a perpetual injunction shall carcass, or other objectionable matter result be granted against the parties maintaining ing from the slaughter of cattle and hogs at such nuisance.

“Sec. 137. It shall be the duty of any sher- , conducted, that its location, proximity, and iff, constable or other police officer to make relationship to the public made it so. complaint against such nuisance and hasten On the hearing on the motion to dissolve its abatement as provided for in this act.” the temporary writ issued in this case, oral

It will be observed that sections 136 and 137 testimony, together with the affidavits of specify the persons authorized to bring an numerous witnesses living in the immediate action under section 134: "Any person own vicinity, was submitted, all of which went to ing real estate within any such addition to the manner in which the defendants used and a town or city, or within lands platted and set conducted the slaughter house, and upon this apart to be sold for residence purposes, may question the testimony was conflicting. Numaintain an action, and it shall be the duty of merous witnesses testified that its location any sheriff, constable, or other police officer to was some 60 rods from the nearest public make complaint.” Under chapter 13, art. 10, | highway, in an inclosure of about one acre, Wilson's Rev. & Ann. St. 1903, the Legislature and that its usage was not such as to create declared the maintaining of a slaughter house a nuisance injurious to the public. W. M. within a certain district to be a nuisance Smith testified that there is no residence "per se," and authorized certain owners of nearer to said slaughter house than the one real estate to bring an action in the courts he occupies as a home for himself and family, to abate and enjoin its continuance. Whether, and that during the present season he culunder that act, the abatement of defendants' tivated a piece of land close to the slaughter slaughter house (erected long prior to the pass house and abutting the inclosure, and that age of the act) as a nuisance "per se,” would the odor he detected therefrom was not difbe constitutional, we do not determine. We ferent from that coming from an ordinary think the scope and purpose of the act is feed lot where stock was kept. A. B. Norelearly set forth in its title to be "An act ton, the owner of a quarter section of land to protect platted lands and townsite addi (excepting the 20 acres sold the defendants) tions from nuisances.” In the absence of any upon which the slaughter house of the deallegation or proof at the hearing that the fendants is located, testified substantially plaintiff was an owner of real estate as set that he had resided continuously for more forth in section 136, he cannot invoke the ap than five years upon that quarter section plication of this act. The plaintiff resides within less than one-half mile north and east outside the city of Newkirk, owns no real of the slaughter house, and that when he estate within its corporate limits, or addi leased the three-acre tract to the defendants tions thereto, and it does not appear in the in the fall of 1900 it was expressly stipulatrecord that this action was brought for the ed that “whenever the said slaughter house protection of any of the citizens residing with was conducted in such manner as to become in the corporate limits of said city or its ad a nuisance by causing a stench or odor to be ditions. On the other hand, it clearly ap noticeable, then, the lease was to be canceled. pears from plaintiff's petition that this ac and the house removed," and that during all tion is brought under chapter 56, Wilson's of that period he was not annoyed in any Rev. & Ann. St. 1903, entitled "Nuisance," way by its operation. He further testified and upon which he must rely in this action. that the city of Newkirk practically empties Section 1 provides: "A nuisance consists in its entire sewerage into the creek or branch unlawfully doing an act, or omitting to per called "Spring creek” running through and form a duty, which act or omission either: across the lands of the plaintiff and defendFirst. Annoys, injures or endangers the ants, and that frequently the odors arising comfort, repose, health, or safety of oth from said creek caused by the said sewerage, ers; or [omitting the second and third subdi were extremely annoying, and that they exvisions] fourth in any way renders other per isted long prior to the time of the erection of sons insecure in life, or in the use of prop the slaughter house; that various farmers erty." Section 2: "A public nuisance is one living along the banks of the creek have their which affects at the same time an entire com feedyards and hog lots on the banks; and munity or neighborhood, or any considerable that the waters of said creek were more or number of persons, although the extent of less polluted by reason thereof, and unfit for the annoyance or damage inflicted upon the stock purposes. Jay Haney, another witness individuals may be unequal." Section 3: living within one-half mile due north, tesEvery nuisance not included in the defini tified that he had not been annoyed by any tion of the last section is private." Section odor or disagreeable or injurious effects from 8: “The remedies against a public nuisance the operation of said slaughter house. are: First, indictment; second, a civil action; / W. Apperson, the stock inspector, who visit. or third, abatement." Section 10: "A private ed the slaughter house two or three times person may maintain an action for a pub each week in his official capacity to inspect lic nuisance if it is specially injurious to the stock to be slaughtered, testified that he himself, but not otherwise.” From the above had not observed about the slaughter house sections the maintaining of a slaughter house or in the yards adjacent thereto, any refuse is not a nuisance "per se," unless it would or offal lying around that would occasion any appear from the evidence, independent of obnoxious odors. A. L. Hazen, a physician the manner in which it was being used and residing at Newkirk, and superintendent of

the board of health of Kay county, testified | grant a perpetual injunction against the car that he had made an examination of the rying on of a legitimate business. Where slaughter house in his official capacity, and the court finds that such an establishment, that he found at that time lying upon the as conducted, is a nuisance, it should allow ground a small quantity of refuse matter the defendants to show, if they can, that, by which he ordered the defendant to remove; the use of proper methods and appliances, that in his opinion the waste from the city it is possible to continue the business in the of Newkirk found its way into "Spring creek” same place without its being a nuisance. as well as the wash from the various feed Where this can be done, a decree absolutely lots along the banks of said creek, and that enjoining the defendants from further conin his opinion the slaughter house in ques ducting such business is too broad. The intion could be conducted in a comparatively | junction should be limited to such usage as cleanly manner and noninjurious to the pub created the nuisance, leaving the right to lic health and inoffensive to the smell by re carry on the business in the proper manner.” quiring the owners thereof to promptly dis 18 Encl. Pl. & Pr., 1148; Hutchins v. Smith, pose of all refuse matter.

63 Barb. (N. Y.) 231; Chamberlain v. Doug. In view of the testimony of the above wit las, 24 App. Div. 582, 48 N. Y. Supp. 710; nesses, can it be seriously urged that there Bushnell v. Robeson, 62 Iowa, 540, 17 N. W. was no evidence reasonably tending to sup 888; Seifried v. Hayes, 81 Ky. 377, 50 Am. port the finding of the trial judge that the Rep. 107; Fresno V. Fresno Canal, etc., slaughter house of the defendants was not a County, 98 Cal. 179, 32 Pac. 943. “When the nuisance "per se”? Where a nuisance con defendant, who has been doing what amounts sists not of a building itself, but in a wrong to a nuisance, disclaims the intention to ful use of it, the remedy is to stop such continue it and is proceeding with diligence wrongful use, and not to remove the building to remove and abate it, the court will, it or to enjoin its rightful use. Barclay v. satisfied that the cause of complaint will be Com., 25 Pa. 503, 64 Am. Dec. 715; Bright removed as speedily as practicable, refuse an man v. Bristol, 65 Me. 426, 20 Am. Rep. 711; injunction." King v. Morris R. Co., 18 N. J. Welch v. Stowell, 2 Doug. (Mich.) 332; Atty. Eq. 397. Gen. V. Steward, 20 N. J. Eq. 415; Cleve In view of the evidence in this case the land v. Citizens' Gas. Light Co., 20 N. J. Eq. trial court properly modified the temporary 201. In Richards v. Holt, 61 Iowa, 529, 1.6 restraining order, permitting the defendants N. W. 595, where it was determined that a to conduct and operate their slaughter house, certain hog lot was so kept and used so as to

but restraining them from such usage as to create a nuisance, but not that it was a nuis

create it a nuisance to the plaintiff and the ance “per se," it was held that "the court was

public, and the judgment of the trial court not authorized in wholly restraining the use

will therefore be affirmed. All the Justices of the lot for the purpose of feeding hogs. It concurring except HAINER, J., who tried should have enjoined only such use of the lot the case below, not sitting. as would amount to a nuisance." Where a livery stable which was a source of annoyance had been burned down, the court re

(17 Okl. 525) fused to enjoin the rebuilding of the same,

CITY OF NEWKIRK V. DIMMERS. since it might be so modified as not to be a (Supreme Court of Oklahoma. Sept. 7, 1900.) nuisance. Shiras v. Olinger, 50 Iowa, 571, TRIAL-MISCONDUCT OF JUDGE-WEIGHT OF 33 Am. Rep. 138.

EVIDENCE. Although numerous witnesses testified that

Under the law and the rules of practice

in this territory the jury is the exclusive judge the usage by the defendants was not such as of the weight to be given the testimony of to create a nuisance, we think the weight of any witness, and a remark or the demeanor of the evidence established that fact, and the a trial judge which amounts to an expression of trial court very properly interrogated the

opinion touching the truthfulness of the testi

mony of a material witness is reversible error. the defendants to ascertain their ability and

[Ed. Note.-For cases in point, see Cent. Dig. willingness to conduct their business in such vol. 46, Trial, $$ 81, 82.] a manner as to avoid the matters complained Burford, C. J., dissenting in part. of by the plaintiff as being specially in

(Syllabus by the Court.) jurious to him. The evidence upon this phase of the question was not contradictory,

Error from District Court, Kay County: but very satisfactory, and clearly showed

before Justice Bayard T. Hanier. that the defendants would and could make

Action by Effie Dimmers against the city certain changes whereby the matters com

of Newkirk. Judgment for plaintiff, and plained of could be easily avoided, and, under

defendant brings error. Reversed and re those circumstances, the court would not

manded. have been warranted in rendering a judg This is an action commenced by the defendment wholly restraining the defendants from ant error in the district court of Kay county the use of their slaughter house, but only to recover damages for personal injuries alfron such usage as created a nuisance in. | leged to have occurred, and been occasioned, jurious to the plaintiff, and to the public. by being thrown out of a buggy, in conse A court of equity is always reluctant to quence of a defect in the street in the city

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