
    Common Pleas Court of Montgomery County.
    State, ex rel. Dr. H. H. Pansing v. Robert Lightner.
    Decided July 28, 1934.
    
      
      Calvin Crawford, pros, atty., and Edward E. Duncan, asst. pros, atty., for plaintiff.
    
      Andrew S. Iddings, for defendant.
   Douglass, J.

This matter is before the court by virtue of the petition filed by the state of Ohio, on the relation of Dr. H. H. Pansing, as Health Commissioner, employed by the District Board of Health of Montgomery county, Ohio, against the defendant who resides in Montgomery county.

The petition alleges that the defendant is feeding a large number of hogs at a farm located a half mile north of the village of Trotwood, with garbage obtained from the city of Dayton: that the garbage consists of both animal and vegetable matter, and, when collected, is in various stages of decay and decomposition, and is to a considerable extent of odious character: that part of the garbage is fed to hogs, and part of it is distributed on an open field: that many complaints have been made as to the offensive odors emanating from the conditions obtaining at the farm as a result of the use of this garbage: that the health officer made an investigation, and found that the condition created constituted a nuisance, and delivered an order to the defendant to abate the nuisance, but that the defendant has failed to obey this order: that the condition complained of is inimical to the health, comfort and welfare of the community, and that a permanent injunction should be granted to the court.

To this petition the defendant has filed a motion to strike certain portions, and also a general demurrer. Subsequent to the filing of these pleadings, counsel for the respective parties agreed to submit the case to the court upon an agreed statement of facts. Therefore, the case is now before the court upon the pleadings, upon the agreed stipulation of facts, and upon the' demurrer of the defendant to the evidence.

The essential facts in the case, as established by the stipulated evidence, may be summarized in this manner:

The farm of the defendant is completely surrounded by other inhabited farms and the incorporated village of Trot-wood, containing several hundred residents lies approximately one-quarter of a mile south of the south boundary of the farm of the defendant. Numerous residents of the farms surrounding the defendant’s farm complain of being seriously annoyed by offensive odors occasioned by the garbage carried to the farm by the defendant, and these odors are, at times, distinctly discernible for at least a half a mile in every direction, depending upon the direction of the wind, the temperature and humidity. The defendant would normally raise a few hogs but would not raise the large number of approximately six hundred except, for the opportuning of obtaining free garbage from the city.

The defendant, in feeding this garbage, has taken reasonable care in its handling after it arrives on his premises.

The city of Dayton has been disposing of all its garbage in this manner for approximately two years, supplying it free of cost to approximately thirty farmers, most of whom drive into the city every day to get the garbage, carrying it to their respective farm to feed hogs concentrated there for the purpose of being fattened on this garbage.

It appears that the city has a garbage disposal plant which is ample for the disposition of all garbage of the city of Dayton but which is not used on account of the inability to make is self-sustaining. Garbage from the residential districts is collected weekly, except at times in some portions of the city eight or nine days may elapse before the collection is made. It appears that during the winter the average daily tonnage collected from these weekly routes is seventy to seventy-five tons, whereas in the summer the average daily collection is from one hundred to one hundred and twenty-five tons. During August and September the average daily collection is 150 tons.

It appears that the total number of hogs fed during 1933 was approximately three thousand, and that a farmer desiring to feed hogs this garbage may make application to the city and thereafter secure the amount of garbage he seeks. It appears that some degree of effort is made to select farms isolated, and that some inquiry is made as to the probability of neighborhood objections.

It appears, further, that there is no systematic control over this distribution, either by the city of Dayton or the District Board of Health, and that some of the feeders feed carefully and some carelessly, and that the District Board of Health has had complaints as to practically every feeder during the current year and during the year 1933, and vigorous complaints from practically every community where the garbage is fed.

In some instances investigations reveal nuisances which were abated by order of the board, and that at times these orders of abatement are observed and at other times they are ignored by the party against whom they are directed. It is agreed further that the relator issued an order of abatement to the defendant but no abatement of the nuisance obained, and that the District Board of Health authorized the relator to file this suit in court.

It should be borne in mind that Montgomery county is a densely populated county consisting of 275,000 people, and the city of Dayton has in its corporate limits 200,000 people. It is obvious, therefore, that 75,000 people live out in the villages and the outlying country in the county.

This statement of agreed facts is obviously incomplete in many respects, but presents the basic conditions around which the issues of this case are centered. The court has not been afforded scientific information and evidence regarding the effect of feeding this garbage to hogs, nor the effect upon the meat supply thus created, nor upon the health of the respective communities. On the other hand, the issues center around the plain proposition as to whether or not this feeding is a nuisance, subject to abatement by an order of a court of equity.

The case presents two general propositions:

First: Is the Board of Health authorized under the law to seek the processes of a court of equity to suppress a nuisance?

Under this aspect of the case a further question is presented as to whether Dr. H. H. Pansing, as District Health Officer, may prosecute such an action for the benefit of the state of Ohio and the Distrtict Board of Health.

Second: Do the conditions complained of constitute a nuisance justifying the exercise of the extraordinary interference of a court of equity and the issuance of a permanent injunction?

The authority of the District Board of Health or the District Health Officer, in the respect now considered, has not been defined by judicial decision in this state, nor has the Health Department of the state or the District Health Officer ever sought injunctive relief against a nuisance inimical to the health of the community. This requires the court to enter into a more detailed decision than would ordinarily be necessary.

The government of the state of Ohio, as created by the Constitution, possesses those powers necessary and requisite to the protection and the welfare of the people constituting the state. It is fundamentally and inherently a duty of the state government to protect the health of the people in the state and in every polictical subdivision and unit of the state. This power, generally denominated as as the police power, is so broad in its scope as to constitute an unlimited field of governmental authority, provided always that its exercise does not transgress organic law, as particularly announced in the Constitution itself. The safety of the people being the supreme law of the state, the exerice of the police power to protect the health of the people has been and must be liberally construed.

Article I, Section Two of the Constitution provides:

“All political power is inherent in the people. Government is instituted for their equal protection and benefit. * * *99

The legislature has provided in the organization of the state government, in Section 154-3, General Code, that:

“The Department of Health, which shall be administered by the Director of Health, is hereby created.”

Other legislation, discussed more particularly hereinafter, provides for the creation of a District Board of Health Commissioner.

The obvious purpose of the statutory law is to protect the health and comfort of all the people. No political subdivision should, therefore, engage in practices injurious to other subdivisions. No strained construction should be placed upon laws enacted for a purpose so fundamental to the welfare of the state.

The end sought being basic to the social security of the people, the means employed to attain it should not be so narrowed by technical limitations as to defeat the very purposes of the law.

However, the state, in granting to municipalities authority in reference to public health, does not relinquish its superior authority and control in reference to the general health of the community insofar as it is related to that of the general health of the state. The authority of the State Board of Health extends throughout the state, regardless of political subdivisions or political units, and under the general statute it is provided in Section 1237:

“The State Board of Health shall have supervision of all matters relating to the preservation of the life and health of the people and have supreme authority in matters of quarantine, which it may declare and enforce, when none exists, and modify, relax or abolish, when it has been established. It may make special or standing orders or regulations for preventing the spread of contagious or infectious diseases, for governing the receipt and conveyance of remains of deceased persons, and for such other sanitary matters as it deems best to control by a general ■ rule. It may make and enforce orders in local matters when emergency exists, or when the local Board of Health has neglected or refused to act with sufficient promptness or efficiency, or when such board has not been established as provided by law.”

Section 1261-16 provides that the state shall be divided into health districts, and that each city shall constitute a health district and be referred to and dealt with as such: that the townships and villages in each county shall be combined into a health district and referred to as a general health district.

Section 1261-17, General Code, provides that:

“In each general health district, except in a district formed by the union of a general health district and a city health district there shall be a district board of health consisting of five members * * * .”

Section 1261-19 provides, in general, that after the District Board of Health is organized:

“The district board of health shall appoint a district health commissioner upon such terms, and for such period of time, not exceeding two years, as may be prescribed by the district board. * * * The district health commissioner shall be the executive officer of the district board of health and shall carry out all orders of the district board of health and of the state department of health. He shall be charged with the enforcement of all sanitary laws and regulations in the district and shall have within the general health district all the powers now conferred by law upon health officers of municipalities. It shall be the duty of the district health commissioner to keep the public informed in regard to all matters affecting the health of the district.”

Obviously, it was the intention of the legislature that the State Department of Health should be authorized to exercise control over matters of. health throughout the state, and that the District Board of Health and the District Health Commissioner should be constituted as direct constituent factors in the general health administration of the state: that the District Health Commissioner should not only carry out the orders of the District Health Board but also the orders of the State Department of Health.

Since the question has been raised as to whether the District Health Commissioner can invoke the authority of a court of equity and seek an injunction against an alleged nuisance, it is first necessary to determine whether the District Board of Health has such authority. It is contended by the defendant that such authority does not exist and that the State Health Department, District Boards and Health Commissioners can act only by arrest or direct physical'abatement of the nuisance.

The court is of the opinion that the authority of the District Board of Health is anchored in the fundamental proposition that the protection of health is the exercise of a governmental power, as distinguished from a proprietary act. The protection of health being governmental, those acts and things necessary to effect protection should be construed broadly and liberally. The exercise of a governmental power, as distinguished from a proprietary power, carries with it, in the opinion of the court, a broadened scope of authority and at the same time prohibits such a limitation upon the authority as to destroy its effectiveness. The prime purpose is to protect the health of each and every community constituting the state. In the exercise of this governmental power the State Board of Health should not be limited so severely that it is prevented from effectuating the purposes of the law. The same principles apply to the District Board of Health. It directs localized administration of general health laws, and while it necessarily has local autonomy in many respects, it is fundamentally still a part of the state governmental system, and possesses not only the authority expressed and implied from the statutes, but that emanating from the very nature of the power invoked to protect health in the locality.

In order to properly integrate the health districts, as parts of the state health system, the State Health Department controls, in general, all matters pertaining to health throughout the state. The statutes specifically provide that the local general health district, and the commissioner of that district, appointed by the local board, shall execute in addition to its own rules and regulations the orders of the State Department of Health. This specific provision of the statute is definite indication of the intention of the legislature to provide an integrated administrative organization to serve the entire state.

In the exercise of these powers, the District Health Board, as well as other legally constituted health boards, are not restrained either by law or courts unless the exercise is palpably and clearly in violation of the organic law of the land, or is so exercised that an abuse of discretion plainly obtains.

The statutes further provide a definite relationship of the District Board of Health with the State Department of Health, and by virtue of Section 1261-24 it is provided that under certain conditions the State Department of Health may appoint such a district board. Under Section 1261-26, the duties of the District Board of Health are indicated and it is provided in this section that:

“The district board of health may also provide for the inspection and abatement of nuisances dangerous to public health or comfort, and may take such steps as are necessary to protect the public health and to prevent disease.”

The scope of authority conferred here is obviously comprehensive, and particularly emphasized in the provision that the board “may take such steps as are necessary.” This indicates the intent of the legislature to confer the broadest authority upon the District Board of Health, and the very nature of the problems confronting health officers and health boards requires authority of such nature and scope, without undue limitations as to the method of its application.

Therefore, the court is confronted with the fundamental proposition that while the District Board of Health is statutory in origin, it has, by the very statutes themselves, comprehensive authority.

It is contended by the defendant in this case that the authority of the Board of Health is limited by statute to two plans of procedure in reference to nuisances: that these processes are set forth in Section 4420, General Code. This section is, in part, as follows :

“The board of health shall abate and 'remove all nuisances within its jurisdiction. It may, by order therefor compel the owners, agents, assignees, occupants, or tenants of any lot, property, building or structure to abate and remove any nuisance therein, and prosecute them for neglect or refusal to obey such orders.”

It is contended by the defendant that this statutory provision is exclusive of all other authority and limits the action of the District Board of Health, so that it can proceed only as indicated therein.

These two specific provisions of Section 4421, providing process which the board may use, are not mandatory upon the board: and do not require adoption of either an order of abatement or physical abatement by the board or its agents.

There is a mandatory provision to the effect that the board shall abate nuisances and these two processes of abatement are afforded the board but are not exclusive of other procedure. This section confers extraordinary authority but does not thereby deprive the board of the right to take other steps if such seem more efficacious.

The court is of the opinion, therefore, that the contention of the defendant that the District Board of Health is limited to those statutory processes is not well founded, and it would be an improper limitation upon the District Board of Health or the State Department of Health to interpret this section as prohibitive of other action by the board, if it deemed such necessary.

The District Board of Health. adopting rules yand regulations which have the force and effect of law insofar as they are not violative of statutory or fundamental law, has enacted a rule and regulation known as Section 26, which is in the following words:

“In all cases where a nuisance shall be found in any building or upon any ground or premises within the township, not more than five days notice may be.given in writing, signed by the health commissioner, to the owner or occupant of such building or premises to remove such nuisance, and in case of his neglect or refusal to abate the same in accordance with such notice, the health commissioner shall prosecute said owner or occupant as provided by law.”

Similar contentions are advanced in regard to this rule as to Section 4420, and the court disposes of them upon the same grounds, to the same effect.

Such a strict limitation as contended for by the defendant upon the procedure of a board of health might prove disastrous at a time when general health was so endangered that the broad and comprehensive authority of a court, expressed through a general injunction, would be the only process of protecting the life and welfare of the community. If it were required to proceed solely upon a misdemeanor charge against one individual, this procedure might be utterly unsatisfactory, inadequate for the conditions confronting the board, and improper when considered in relation to the general welfare of the community. Not only is this contention of the defendant answered by sound reason, but it is answered specifically by the provisions of Section 1261-26, quoted in part hereinbefore by the court, which provides that the board “may take such steps as are necessary to protect the public health and to prevent disease.”

The very nature of the power exercised, being broad and comprehensive in scope, dealing with the fundamental right of a community to safety and protection from disease and discomfort of health, carries with it, as an implication, the authority to use those processes duly established by law, and to exercise discretion and judgment as to the nature of the processes invoked to effectuate the purposes of the board. Therefore, the legislature in the enactment of Section 1261-26 conferred general authority upon the District Board of Health, and while subsequently it pointed out two definite processes of procedure, the general authority remains unabated by this specific legislation.

This brings the court to a consideration of the significance of the remedy sought in this case. Under the contentions of the defendant, not only would the District Board of Health and the District Health Commissioner but even the State Department of Health be confined to particularized process, such as an arrest of the offender or a physical abatement of the nuisance.

When it is considered that a private citizen may enter the courts of the state to abate a nuisance, it would seem extraordinary that a Board of Health should be barred from the use of the courts. If a state is not specifically prohibited from suing, it may sue for all proper and legal purposes- of the state, and since the Board of Health is part of the organzied government of the state, acting as an administrative board, for the protection of health of local communities, it has access to the courts in the same manner as the state.

The court is confronted with the contention that a District Board of Health is not a corporate body, and, therefore, cannot sue. This contention does not impress the court. The District Board of Health is not to be enervated by technical contention as to the nature of its organization. However, this contention is answered by the very words of the statute itself, as provided in Section 1261-19, which specifically provides that the- District Health Commissioner shall have all the powers now conferred by law upon health officers of municipalities. Having this specific statutory authority, the District Health Commissioner may proceed in every manner in which the health officers of municipalities may proceed.

In this case, it is contended that even if the District Board of Health has authority to proceed in court, the District Health Commissioner has no such authority. Section 1261-19, General Code, provides that the Health Commissioner shall be the executive officer of the District Board of Health, shall carry out the orders of the District Board of Health, and shall have authority, as indicated immediately hereinbefore.

In the instant case, the District Board of Health has acted, by resolution, authorizing and directing the action of the District Health Commissioner, specifically instructing him to proceed in court, and to prosecute this action in a court of equity. This is, therefore, the act of the District Board of Health, and since the Health Commissioner has the same authority as the health officers of a municipality, it is a necessary conclusion that the health commissioner, himself, may prosecute this action as the executive officer of the board, and agent of the state department.

The law has always sought to avoid a multiplicity of suits and the Health Commissioner in this case insists that it would not be effective for him to persist in securing the arrest of the defendant, particularly since the question presented involves the right of the defendant to use his property and the method and manner in which he shall use the garbage collected from the city.

Further, it is not promotive of sound policy in the governmental system of the county for the city of Dayton to be engaged in making contracts for garbage disposal and the County Health Officer be engaged in causing the arrest of those contracting. This is so obviously confusing as tb require no discussion:

The court finds, further, that the District Health Commissioner, by virtue of the statutes therefor provided, may prosecute this action for the board of health, in behalf of the state of Ohio, and that since the matter is one involving the health of the community, it may be prosecuted in the name of the state of Ohio, upon relation of the relator, as the duly and legally constituted officer authorized so to act by law and by the authorization of the board of health.

Upon the showing made in this case, under the evidence, and upon consideration of the broad and general nature of the authority imposed upon the board and the health commissioner under the statutes, the court holds that the naure of the problem confronting the board requires the interference of a court of equity, and that this suit is properly before the court.

Disposing, therefore, of the contentions advanced by the 'demurrer, the court holds that the demurrer is not well taken as to the authority of the health commissioner to prosecute this action, nor as to the authority of the health commissioner to enter a court of equity, and holds that the doors of the court of equity are properly open to the District Board of Health or the District Health Commissioner, when conditions legally cognizable by him or the board obtain, and unless restrained and forbidden will result in irreparable injury to the community, the statutory processes being inadequate to effectuate the purposes sought to be effectuated in a court of equity.

Turning, now, specifically, to the question of whether an injunction should be issued in this case, the court has studied carefully the factual aspects of the case and finds an extraordinary system and practice obtaining in reference to the garbage of the city of Dayton. By ordinances regulating the sources of supply to the city, particularly of meats, milk and other produce brought from the country, the city has undertaken to insure the health of the residents of the municipality. It has developed an extraordinarily efficient and comprehensive health division as .a part of the welfare department created by the charter of the city of Dayton.

When this is • considered, it seems preposterous indeed that the garbage disposal of a city of this size should be through distribution to residents of the county, and that the health and comfort of the county should be to a considerable extent objectionably invaded, by a system resulting in hog concentration camps of obnoxious nature.

The court has not had the benefit in this case of scientific evidence, expert and medical in its nature, as to whether or not this garbage is the proper food for hogs. But if it be considered that it is fit food for hogs, fed under the most advantageous conditions, the question before the court in this case is as to whether or not the conditions created are destructive to the health and comfort- of the rural districts. ,;

In the instant case it is admitted that the defendant is feeding some six hundred hogs. on his farm. The south boundary of this farm is about one-quarter of a mile north of the north boundary of the village of Trotwood: the farm is bounded on all sides by inhabited farms. Residents nearest the farm and in that particular area for the distance of a half mile in every direction complain of serious annoyance by offensive odors caused by the garbage fed on the defendant’s farm.

Common sense and human experience indicate that an ordinary hog pen is generally offensive in its immediate locality, and particularly difficult to keep clean, sanitary and inoffensive during certain periods. The average farmer raises a few hogs, and it is necessary that he should have the privilege of raising them, and odors attendant upon such an operation are necessary incidents of rural life. However, when six hundred hogs are concentrated on one farm, an extraordinary condition obtains, and it is practically inconceivable that so many hogs could be kept and fed in one area without offense to the immediate neighbors. Were these hogs fed even normal rations consisting of grain and various grain products, the existence of so many hogs and the natural attendant results thereof would probably be offensive to a nearby neighbor, but when there is added to this the fact that garbage, accumulated from a period of a week to eight or nine days, of all manner of description, texture, nature of composition and decomposition, is a source of feed for these hogs, the court can readily understand the existence of offensive odors. To the stench of the hog concentration pens is added the all-pervasive stench of tons of garbage.

It should be said that probably every effort is made to avoid offensive odors, and it is provided by the stipulations that the defendant is known as a good feeder, that is, he employs the best technique apparently available to avoid offensive conditions. The court has no doubt that the defendant makes efforts to avoid creating a nuisance. On the other hand, the very system involved is inevitably conducive to disagreeable conditions, and regardless of the good intentions of the feeder, the court is of the opinion that no man can feed six or seven hundred hogs, or any number approximating that number in one spot, with citywide garbage, without creating thereby a nuisance.

The contention, therefore, that the conditions presented by the evidence in this case do not constitute a nuisance is utterly untenable, A nuisance is anything which endangers- life or health, gives offense to the senses, violates the laws of decency, or obstructs the reasonable and comfortable use of property. — 20 Ruling Case Law, page 300.

Nuisances, therefore, may be classified as those conditions or acts which are in themselves nuisances, at common' law or by statute; second, those acts or conditions not necessarily by nature nuisances, but such by their manner of operation, locality, or surroundings; third, those which by nature are nuisances but as to which impartial men may disagree. The acts and conditions complained of by the relator in this case might justifiably be classified as nuisances under all these accepted aspects. The court holds that feeding garbage of the nature obtaining in this case, ton after ton, to hundreds of hogs, day after day, in one location, is a nuisance per se, in itself. Even though feeding hogs is generally not a nuisance, it may become so even under ordinary conditions, but such feeding as is ordinarily done is not comparable in any way to the mass feeding indicated in this case. More than half a century ago the Supreme Court of Massachusetts, in the case of Commonwealth v. Peny, 139 Mass., 198, held that:

“A piggery, in which swine are kept in such numbers that their natural odors fill the air thereabouts and make the occupation of the neighboring houses and passengers over the adjacent highways disagreeable, is a nuisance.”

This statement was made by the court a half century before modern sanitation principles were recognized in cities. The necessity of protecting and insuring social security has developed a system of sanitation in every locality in every state, and particularly in metropolitan areas like the outlying districts of Montgomery county, there is obvious necessity of well regulated health administration. Hundreds of decisions are available recognizing similar conditions as obtain in this case as nuisances, and the law has made progress with enlightened living, and seeks to protect health and comfort, not to encourage its destruction.

This is a condition creating an actual nuisance. It is not the surmise or conjectures of an opinionated individual which brings this case into court, but it is a resolution of the board of health, charged with the duty of investigating such matters. The board has investigated, has found that a nuisance obtains, and its judgment in that respect is persuasive to this court. In addition, the relator, while speaking in behalf of the entire community, has indicated that various neighbors have protested vigorously against this particular concentration and feeding station, and that the odors from it actually pervade the air for a half a mile in every direction. This means that the odor can easily reach the village of Trotwood. Therefore, the conditions complained of are factual and not theoretical, and the nuisance is not a matter of conjecture, but a matter of absolute proof.

Adopting the words of the Supreme Court of Ohio, in the early case of Columbus Gas Company v. Freeland, 12 O. S., 399:

“It is evident that, what amount of annoyance or inconvenience will constitute a legal injury, resulting in actual damage, being a question of degree, dependent on varying circumstances, cannot be precisely defined, and must be left to the good sense and sound discretion of the tribunal called upon to act.

“Regard should be had to the notions of comfort and convenience entertained by persons generally of ordinary tastes and susceptibilities.”

As further stated by the same court in the case of Cooper V. Hall, 5 Ohio Rep., 321:

“ * * * it is only when some actual injury is done that a right of action ensues. Every man has a right to use,, his own as to himself seems proper; but he must be careful so to use it, that no injury is done to another. * * * The term nuisance signifies anything that causes hurt, inconvenience, annoyance, or damage. If a thing complained of causes neither of these it is difficult to discover upon what principles it can be called a nuisance. But if it causes either, in the least degree, the person creating it must be answerable for consequences.”

It is urged that the city has a legal right to dispose of its garbage in this manner. The court does not question the legality of the city’s contracts or agreements, but if the feeder of garbage creates a nuisance, the court acts direct against the nuisance and is not concerned with the legal aspects of the municipality’s plans.

However, the city cannot enjoy a legal right which violates the health and comfort of rural residents. The city has a duty to dispose of city garbage but that duty does not justify creating conditions harmful to rural residents.

In the case of Reifsnyder v. The Canton Fertilizer and Chemical Company, 28 O. C. A., 577, Stark county Court of Appeals, the court held:

“The authority vested in municipalities by the legislature _to contract for garbage disposal does not authorize the creation of a continuing nuisance, which will be a menace to health and an injury to private property; on the contrary the power so granted must be exercised with due regard to the health and comfort of the community and rights of property owners, and where not so exercised injunctive relief may be granted.

“The fact that a garbage disposal plant, operating under contract with a municipality, is equipped with the most modern facilities and operated with skill and care does not preclude relief from smoke and noxious gases and odors emitted by such plant.”

The Supreme Court of Ohio, in the case of City of Bucyrus v. State Department of Health, 120 Ohio State, 426, at pages 428 and 429, held:

“It is a matter of concern to the whole state whether a municipality so dispose of its sewage as to breed disease within the municipality, for the municipality is of the public of the state; and it is equally a matter of concern to the whole state whether a municipality so dispose of its sewage as to breed disease without and in the vicinity of its own territory, and whether, having bred disease in either situation, it disseminate it throughout the state.”

The same principles obtain in refrence to the disposal of garbage, and there is no merit in the contention that the municipality, having a legal right to dispose of its garbage, can commit no wrong in reference to its manner of disposition. Nor is there any merit in the contention that the defendant has such a property interest in the hogs that he is entitled to feed them whatever he decides. There is no business which has a fundamental right to operate contrary to the welfare of the community.

As stated in Ruling Case Law, Volume 20, at 444, 445:

“It is thoroughly established that any business, though in itself lawful, which necessarily impregnates the atmosphere with disagreeable or offensive odors or stenches may become a nuisance to those occupying adjacent property, in case it is so near, and the atmosphere is contaminated to such an extent, as substantially to impair the comfort or enjoyment of such adjacent occupants.” “And in order to render a business, the conducting of which pollutes the air with noxious smells and vapors, such a nuisance as will entitle adjoining property owners to recover damages for the maintenance thereof, it is not necessary that such owners should be driven from their dwellings; it is enough that the enjoyment of life and property is rendered uncomfortable.”

The court disapproves, completely and absolutely, this system of disposing of the garbage of a great urban center like Dayton. It is conducive to abuses by those unwilling to protect the communities in which they reside, and regardless of the efforts made to the contrary, it is a nuisance and disturbs the comfort and convenience of the residents in the neighborhood where such feeding is done.

The court has in mind, further, that the District Health Board has' problems of health which necessitate utilization of the force which it is able financially to maintain, and that it is an unfair burden upon the District Health Officer and his assistants to require them to inspect these hog concentration feeding stations, and to assume the additional burden of satisfying the community and protecting it against the offensive conditions practically inevitably obtaining. It appears to the court that the system itself, therefore, is distinctly objectionable, unwise, and from the broad standpoint inimical to the health and comfort of the rural districts. It is true that it may prove profitable to those engaged in the feeding, but the safety, comfort and health of the entire people is not to be ignored to create benefits for a few people.

The court is, therefore, of the conclusion that from the evidence presented the feeding of hogs by the defendant as indicated is obnoxious and inimical to the comfort and health of the immediate community: that such a condition is by its very nature a nuisance, in all the sensible aspects and definitions of that word, as it obtains in the law. The court regrets, naturally, any increased burden placed upon the city at this particular time when its financial problems are so difficult, but, on the other hand, is of the opinion that the system employed in reference to this garbage is so fundamentally objectionable and so contrary to the whole intent, scheme and purposes of the Division of Health of the city of Dayton, and such an invasion of the comfort and health of the communities involved, that it is not to be condoned, approved or permitted because of a monetary saving effected in behalf of the city.

The court, therefore, after full consideration, holds:

1. That the system of garbage distribution employed by the city of Dayton is inimical to the comfort, health and welfare of the rural districts of Montgomery county, and should be discontinued.

2. That the system employed is in violation of sound principles of sanitation and potentially conducive to disease and impairment of health in the rural districts of the county.

3. That the system is inimical to the policies of cooperation which ought to obtain between the health • authorities of the municipality and the health authorities of the outlying villages and county districts, and that it places an unfair burden upon the District Health Board and its officers.

4. That the system is conducive to concentration of such a large number of hogs as to inevitably create a nuisance, and is thus destructive of the comfort of the community in which such concentration is made.

5. That the nature, condition and age of the garbage, and the factors relating to its collection and distribution result in unsanitary hog feeding and, in addition, creates potentially a source of disease.

6. That the odors obtaining as a result of this system of feeding and as a result of the garbage used are offensive to the comfort of the communities involved, and that feeding in such amounts to so many hogs, as is evidenced in this case, is conducive to general unsanitary conditions in the locality in which it is conducted.

Therefore, the court holds that the operation engaged in by this defendant in feeding garbage to hogs, as indicated in the stipulations in this case, is a nuisance, and that the same should be ordered abated permanently.  