
    State ex rel. James Harris, R. C. Bay, I. L. Penn, John D. Pollock, J. G. Douglas, Emory Trask and James Shuman v. The City of Lakeland.
    193 So. 826
    Special Division B
    Opinion Filed February 16, 1940
    
      
      John S. Edwards, for Appellant;
    /. P. Mar chant and Carver & Langston, for Appellee.
   Per Curiam.

Appellants filed their bill of complaint in the Circuit Court to abate a public nuisance as provided by Section 5029, Compiled General Laws of 1927. There was an answer to the bill tendering various defenses to which a motion to strike was interposed. The latter motion was overruled and this appeal was prosecuted.

The doctrine of comparative negligence is relied on to defeat the bill. This doctrine has a very important place in private nuisance cases but it has rarely if ever been applied in strictly public nuisance cases. The briefs evidence misunderstanding on the point.

The chancellor undertook to adjudicate the merits of the case on the pleadings without taking testimony and in doing so, assumed that facts constituting a public nuisance were not stated. In this, he was in error. If the allegations of the bill are proven, they are sufficient to support a public nuisance. It will then be time to determine whether the doctrine of comparative negligence has any application. If a public nuisance is conclusively proven, the responsibility will be on the City to remove it. This it may do by modernizing its present sewage disposal facilities or by providing additional ones. It cannot plead poverty or inability to remove a nuisance created by it that has become deleterious to the public health.

The judgment appealed from is reversed.

Reversed.

Terrell, C. J., and Buford and Thomas, J. J., concur.

Brown, J., concurs in opinion and judgment.

Justices Whitfield and Chapman not participating as authorized by Section 4687, Compiled General Laws of 1927, and Rule 21-A of the Rules of this Court.  