
    The State, ex rel. Hover, Pros. Atty., Appellee, v. Rumpke, Appellant.
    
      (No. 7936
    Decided November 9, 1955.)
    
      Mr. C. Watson Rover, prosecuting attorney, and Mr. Carl B. Rubin, for appellee.
    
      Messrs. Freiberg & Simmonds, for appellant.
   Per Curiam.

This is an appeal on questions of law and fact from a judgment of the Common Pleas Court. Relator, C. Watson Hover, as Prosecuting Attorney of Hamilton County, claims respondent, William Rumpke, is conducting a common nuisance in the manner in which he is operating a garbage and waste disposal plant located on property owned by him in Colerain Township, Hamilton County, Ohio, in violation of Section 3767. 01 et seq. of the Revised Code of Ohio, and prays that such nuisance be abated.

Garbage, ashes, trash and other waste material are collected by the defendant from 120,000 householders and 14 commercial houses located in two cities, one village and 11 townships, chiefly in Hamilton County.

The case was presented to this court on the transcript of the evidence given in Common Pleas Court, depositions filed in this court, together with supplemental depositions filed by the defendant on April 15, 1955, hearings on arguments of counsel on March 28 and September 21, 1955, and extensive briefs filed by counsel following each hearing. The court viewed the disposal plant prior to each hearing in order to better understand the evidence before it.

At the time of the first hearing, the most objectionable features of the operation were fires which emitted noxious and offensive smoke and odors that permeated the air. Since that time, however, the fires have been completely extinguished and the operation of the disposal plant so completely changed as to eliminate, considering the nature of the undertaking, any reasonable cause for complaint.

In view of the above and the further fact that Hamilton County has failed to demonstrate to our satisfaction that it has the present facilities, or that it will have them available in the near future, adequately to assume a burden so necessary to the well being and health of the many people concerned, we unanimously find that the operation of this disposal plant, under the facts and circumstances as now exist in the matter, does not constitute a public nuisance, that the equities lie with the defendant and that, consequently, this court, as a court of chancery, cannot in equity and good conscience issue the injunctive relief prayed for by relator. A decree is issued for respondent.

Judgment for respondent.

Kovachy, P. J., Skeel and Hurd, JJ., concur.

Kovachy, P. J., Skeel and Hurd, JJ., of the Eighth Appellate District, sitting by designation in the First Appellate District.  