
    The State, ex rel. Underwood, v. Central Depositors Bank & Trust Co. et al.
    (Decided January 15, 1932.)
    
      Mr. Gillum H. Doolittle, director of law, and Mr. Rice A. Hershey, for plaintiff.
    
      
      Messrs. Herberich, Welch & Powers, for defendant the Central Depositors Bank & Trust Company.
   "Washburn, J.

This action was brought under Section 13195-1, General Code, seeking to have the court declare that a certain dwelling. house was a public nuisance because the prohibition law had been violated therein, and asking that an order be made to padlock the same; and the case is before this court upon appeal and an oral motion to dismiss such appeal.

The evidence discloses that the defendant Bank & Trust Company owns said dwelling house, which is an ordinary dwelling containing ten rooms, which it rented to a Mrs. Clark for dwelling house purposes in March, 1930; that in April, while she occupied said premises, but in her absence, the place was entered by police officers, who found some men and a small quantity of liquor in the dwelling, and that one of the men was arrested for illegal possession, and later convicted in the municipal court; that Mrs. Clark continued to occupy said premises until June, 1930, when she vacated; that the premises were unoccupied until July 1, when they were rented to another tenant, who stayed but a short time, and that the premises were again rented to a party who remained there until October 1, 1930; that on September 9, 1930, the officers again raided said premises, in the absence of the man who rented the same, and again found some men in said premises, and a quart bottle of whisky on the back porch, and a half pint of whisky in the pantry, and one of the men was arrested and later convicted of illegal possession of intoxicating liquor; that after the tenant who occupied said premises left on October 1, the premises remained unoccupied until January 19, 1931; that said bank had no knowledge of any of these transactions, or any circumstances which should excite suspicion; that on January 19, 1931, and just before this action was begun, the bank rented said premises to a tenant who remained there a short time, and the premises were then rented to the present tenant, who has been occupying the premises for about one year; that since the occurrence on September 9, 1930, there has been no violation of the liquor laws in said premises, and ho claim is made that there is any apprehension that the prohibition laws will be violated upon said premises, but on the contrary the evidence justifies the expectation that there will be no such violations.

As has been pointed out, there was one violation in April, 1930, by a person who was not a tenant, another violation in September, 1930, by a person who was not a tenant, and since September, 1930, there have been no violations; and from October 30, 1930, to the date on which this suit was begun, the premises were unoccupied. This action was begun against the owner of said premises on January 19, 1931 — nearly five months after the last violation and at the end of the period of four months during which the premises had been vacant.

Under the evidence in this case, we find that at the time the suit was brought there was no nuisance, and no basis for a reasonable apprehension that the premises would be used in any manner other than for lawful and legitimate purposes; and said premises have been so used since September 9, 1930.

The fact that an owner did not know that his tenant was violating the prohibition law upon the owner’s premises is no defense to an action to abate a nuisance and decree a closure of the premises; but if the owner is without knowledge of wrongdoing upon his premises, and has not purposely avoided such knowledge, and before suit is brought the nuisance is completely abated, and the evidence shows that there is no reason for apprehending a repetition or recurrence of the nuisance, a court of equity should refuse to enjoin the occupancy and use of said premises.

Upon the pleadings in this case we hold that this is an equitable action and appealable, and upon the facts hereinbefore set forth we hold that a court of equity ought not to declare the existence of a nuisance and ought not to issue an order padlocking said premises. Fessler v. United States, (C. C. A.), 39 F. (2d), 363; United States v. Burtell, (D. C.), 51 F. (2d), 765; Grosfield v. United States, 276 U. S., 494, 48 S. Ct., 329, 72 L. Ed., 670, 59 A. L. R., 620.

The prayer of the petition will therefore be denied and the petition dismissed, at plaintiff’s costs.

Petition dismissed.

Pardee, P. J., and Funk, J., concur.  