
    HEALTH — PESTHOUSE—NUISANCE.
    [Mahoning (7th) Circuit Court,
    October Term, 1903.]
    Laubie, Cook and Burrows, JJ.
    Youngstown Township (trustees) et al. v. Youngstown (city) et al.
    1. Pesthouse Near Public Road and Schoolhouse a Public Nuisance, When.
    A smallpox hospital established in 1878 under the act of March 23, 1875 (72 O. L. 77),_ by a municipality, outside of the corporate limits but within the township in which the municipality is located, on a lot facing a public highway, but over 250 feet back therefrom, and then, and frequently thereafter, used for such purpose, will not be abated as a public nuisance, although dwellings have been erected adjacent to said lot since such hospital was established, together with a large township schoolhouse built on such highway directly opposite such lot.
    2. Specific Acts Abatable as Nuisances Create no Right to Have Pesthouse Abated.
    The fact that the refuse of table and kitchen of said hospital is deposited on such lot near to such pesthouse, and accessible to the dogs and cats of the neighborhood, and that nurses and convalescents are permitted to occasionally promenade such highway, creates no right to have such pesthouse itself abated as a nuisance, as such acts may be prohibited by injunction upon proper, application.
    3. Erection of Additional Building for Pesthouse Will be Restrained, When.
    The erection of an additional building for such hospital purposes on such lot, within fifty feet of such highway, and directly opposite such schoolhouse, by such municipality, will however be restrained as a public nuisance.
    Appeal from court of common pleas.
   LAUBIE, J.

This case is brought for the purpose of abating an alleged nuisance —a pesthouse — which the city of Youngstown established outside of the municipality.and within the limits of the township; and in addition thereto plaintiff asks for an injunction to restrain the city and its board from erecting upon the premises in question an additional pesthouse.

So far as the first proposition is concerned, it appears from the evidence that the city obtained this lot and building for a pesthouse, or smallpox hospital, and not as a mere quarantine, and established the same and obtained the deed therefor in 1878. At that time the statute of the state (act of March 23, 1875, 72 O. L. 77) authorized municipalities to establish pesthouses either inside or outside of the limits of the municipality without any restrictions whatever. Counsel for defendants called our attention to a subsequent act, that placed some restrictions upon the power of a municipality. But as that act does not relate to pesthouses or smallpox hospitals, but only to permanent quarantine establishments, we think it has no application to this case.

This property was obtained for the purpose stated, and the pesthouse is nearly 300 feet back from the highwa}'- and was established before the neighborhood was in anywise thickly populated, and before the location of the schoolhouse that was erected by the township on the opposite side of the road. It is immaterial whether the township-trustees had actual notice of this or not. They were bound to take notice of it, and therefore must be considered as having erected their schoolhouse with notice that an the opposite side of the road, on the lot referred to, the city had established a pesthouse, authorized by law, and the)1' cannot, at this late day, ask to have that pesthouse abolished as a nuisance.

The fact that refuse of table and kitchen was deposited where dogs and cats of the neighborhood could reach it, and that nurses and convalescents were permitted to promenade such highway occasionally, would not be ground sufficient to authorize the abatement of.the pesthouse itself as a nuisance, as such acts could be restrained by injunction, upon proper application.

This does not, however, deprive the plaintiffs of the right to have the city enjoined from erecting the building which it threatens now to locate upon the lot.

By the answer of the defendants, they claim a right to build this addition or separate building, and allege that they are going to do it, and erect it within fifty feet of the highway directly opposite to the schoolhouse in question, where the school children of this township attend school.

So far as this proposition is concerned we think that it would be highly dangerous to the neighborhood and to the people living in the township and the children attending school at this place, to permit this building to be erected so near to this highway and the schoolhouse in question.

We look at this as a separate and distinct proposition from the first, wherein the plaintiffs seek to prevent the city from using the old building at the rear end of the lot for the purpose specified. We say that while the plaintiffs cannot have the pesthouse as maintained in the old building abolished as a nuisance, yet it would be an insufferable nuisance to permit the city to erect a building for the purpose designated, within fifty feet of a very extensively traveled highway and much nearer such schoolhouse and dwellings which have been erected during the years when the pesthouse was not maintained, and for these reasons the injunction, so far as the erection of this building is concerned, is 'granted, and the order made as asked for in the petition.

We think because the city did obtain the present building and established therein and maintained, whenever required, a pesthouse or hospital for smallpox patients, that this did not give the city a right to erect on the same lands another building for a pesthouse so near' the highway as to be dangerous to the public, against the protest of the township trustees.

The order therefore will be, that the city shall be enjoined from attempting in any way to erect a building on the site proposed, and the order will be made, as I have saisl, in conformity with the prayer of the. petition in this respect, and at the cost .of the city of Youngstown.  