
    State ex rel. O. W. Harris, County Attorney, Appellee, v. Herbert Drayer, Appellant.
    No. 42288.
    June 23, 1934.
    R. G. Howard, and Salinger, Reynolds & Meyers, for appellant.
    O. W. Harris, for appellee.
   Evans, J.

The function of the rendering plant under attack is to process the carcasses of animals. The enterprise consists of an attempt to salvage the carcasses of animals that have died from diseases. In many cases the diseases are of a loathsome, infectious, and contagious character. The carcasses are often allowed to lie exposed to the sun for several days before they are removed. Many of the carcasses are literally rotten before they are handled at all. The defendant has operated the plant more or less for several years. He was first enjoined in August, 1931. At that time he submitted to a decree enjoining him from using the plant in such a manner as to create a nuisance. In June, 1932, he was cited for contempt for violation of the decree. He closed the plant and the citation was discharged. On September 15 he started the use of the plant again. This action was begun on October 18. The petition prays for an unqualified injunction. The principal contention argued before us is that the defendant should have the opportunity and privilege to experiment with his plant with a view of discovering some method or means whereby he may operate it without rendering it offensive to the neighborhood. For the three years during which this controversy has been simmering, the trial courts have been tolerant and anxious to protect the defendant against unnecessary loss. Their experiment has not been successful. It is contended that the plant is not a nuisance per se. We need not discuss that question. What is plain upon this record is that it can readily become a nuisance of the first order. If there is any method of its successful operation without rendering it a nuisance, there has been no sign of it in the evidence heretofore produced. The state introduced evidence of a dozen residents of the neighborhood living within a half or three-quarters of a mile from the plant as to the stench that has to be endured by these families. The plant is situated within the corporate limits of the county seat town of Jefferson. The direction of the wind is a factor in the testimony; that is to say, each family takes its penalty when the wind is blowing from the plant toward the residence. Upon the record before us, we need not go outside of the testimony of the defendant himself for a demonstration of the futility of further experimentation in the immediate present. The testimony of the defendant shows that the carcasses which are brought to his plant are not brought promptly; but are often brought after four or five days of rotting. True, he accounts for some of this delay in the rendering process by reason of a breakdown in his machinery. We quote sufficient from his testimony to indicate its general character:

“In the meantime these animals laid on the floor and got quite rotten.”
“We dump our stomach manure, we cut the stomach and throw that over the bank. It is nothing but weeds, such as hay and grain. It is no different than ordinary manure. I don’t think there is any more smell from it. I was raised on a farm. There are no portions of the animal thrown out. We first skin the animal and cut them up in chunks, on the skinning floor, a cement floor with a drain to the inside. None of the animals are cut up or opened outside. In the winter time the- doors are closed. In the summer they are left open when it gets hot in there.”
“We run the washings from the skinning floor into this large septic tank and put this steam into the septic tank. The septic tank fills full of water and the steam goes in there and kills the action of the septip tank. It also boils the water in the septic tank as you boil a pot of cabbage or something of that kind, and the odor from that bloody water escapes through the drain from the septic tank and that is the odor you smelled over the country. Before I opened up again, in order to keep the odor down, I run this pipe back to the river, through the septic tank but didn’t stop, on back to the river and put it under the river water. We have both ways now, we have a legal way in the septic tank and the illegal way, into the river. The illegal way keeps the odor down and the legal way keeps it up in the air. When we try to run according to law, we make a smell in the country, and the illegal way we keep the smell down. That is why some days it stinks and some days it doesn’t. I have had a little trouble with my men — it dries quicker one way than the other, and the days I am away somewhere, they will open it up and try it the other way and as soon as I get onto the job again we put it down the illegal way, and that is why it smells sometimes, and sometimes it doesn’t. If you can get me a bunch of good men that will do things right, I will keep the smell down all the time. None of the carcasses are cut up outside. Carcasses are sometimes hauled there in a smelling condition. There are farmers all over the country insist on holding their dead stuff until Saturday night at five o’clock and call us because they are going to have company Sunday. That stuff is put in the building as soon as we possibly can. We don’t aim to have more than one or two loads ahead. At night the building is always closed and as soon as that goes into the machine, it is vacuum tight. We put a thirty pound vacuum on there.
“Q. Is it possible for any odor to get away? A. Absolutely not. The odors come from the septic tank the law compelled me to build.
“I run a rendering works at Gowrie for three years. No septic tank will work at a rendering works. There is too much grease on it; it kills the action of the septic tank but the law demands it. There was a complaint made soon after I took possession of the plant. That is the smelling. I found the cause of that smell, on a forty acres of land owned by Johnny Paul that he had some sheep in. The sheep were dead a few rods from the Henning filling station. They were dead and laid there until we loaded them with a scoop shovel. That is the time they were complaining of the smell coming from my plant. The city septic tank is on the road between here and the plant and every so often during the year they open the septic tank and dump the contents into a filter to filter away and there is a slight odor from the septic tanks when they do that.”
“Q. If the court gives you a chance to go ahead and operate this plant can you, and will you put men in there that will do it? A. I will if I can possibly get them. I have got a man in there now that’s good, but I have to have a second man.
“I understand I am responsible for what my men do.”
“A. Yes, sir, I can. If I am allowed to put it back in the river as it was when we started.”
“There have been a large number of deaths from hog cholera this summer and fall. My trucks have picked up an average of one hundred head a day for the last thirty days besides horses and cattle. We run about ten to twelve head of horses a week and run about 15 to 20 head of cattle a week.”
“There is no way for the escape from the cooker to get in the steam boiler. Steam is cheaper. There would be no less odor from electricity. The pure food inspector told me to put in the septic tank. He said, ‘Why don’t you build your septic tank and stop the racketing.’ He did not say it was the law. I don’t mean to intimate that you, or the sheriff or some branch of the law made me build a septic tank. The statute law says there must be a septic tank. The thing that caused the odor was the steam that ran into the blood. The washings from the skinning floor must go through a septic tank before entering a running stream. The law does not say anything about having to run the steam into the blood. When the septic lank boils it stinks. The inspector said to put the steam in the septic tank. Mr. Middlestadt told me to do that. When I open what he told me it stinks. When I do what Middlestadt said it is contrary to what Judge Hutchison said. I am not testifying that when this thing came up in June there was no stink. I suppose there was. It was enough that it could have bothered people but not to the extent that you complained. I have the keenest smeller you ever saw. When I come out of the fresh air and go into that building it bothers me. I know there is a smell there. I don’t question the word of the witnesses. The reason I closed down was for the reason that I didn’t have money enough to go ahead. When I closed down in June I was not operating the plant in the mannér Judge Hutchison told me to operate it.”
“A. When the ammonia from those dead animals arise and moves. When it is fermented. „ When it is rotten. It happened a year or so ago when we laid up for three days. It has not happened since. How soon an animal smells after death depends on the condition of the weather and its condition. It depends on how much stuff they have in their stomach, how quick they ferment and bloat. After the animal has bloated the ammonia smell will not start until the hide is broken. If the animal is swollen I cut it open and the gas from the stomach will go in the air. There is no smell there until it is rotten.”
“There isn’t any difference in the treatment for an animal because it is dead five days or more, than the one that just died.”

The foregoing is sufficiently illustrative of the offensive condition created by the operation of this plant. It is manifest from the defendant’s own testimony that he has no course of conduct in contemplation that will make the conditions less offensive. As it is, they are literally intolerable. Take the one picture of a hundred carcasses a day of hogs, cholera diseased, and a substantial number of horses and cattle in addition. In the defendant’s evidence, we find no sign of purpose or probability that a different method of operation is available to the defendant, which will eliminate from such operation the nuisance character otherwise attaching to it.’ The trial court has assumed a sympathetic attitude toward the enterprise, and has sincerely sought to avoid the necessity of absolute abatement.

We think it has done all that justice requires, or permits, and the decree is affirmed.

All the Justices concur.  