Meek

Action to abate a nuisance (a cream of tartar works), and for damages. The action was tried before the court without a jury, findings made and filed, and judgment entered for plaintiff that the nuisance be abated, and for $1,000 as damages. A motion for new trial was denied, and the case comes here upon an appeal from the judgment and order, upon the judgment-roll and a bill of exceptions.

The first question presented is as to the correctness of the ruling of the trial court overruling defendant’s demurrer to the complaint; it being urged that, because the complaint shows that many persons lived near to the works complained of and were similarly injured, the complaint states a public and not a private nuisance. The complaint, among other things, alleges that the works of the defendant are situated within one hundred feet of the property of plaintiff, upon which there are two dwelling-houses, and that defendant, in conducting his works for the manufacture of cream of tartar, has permitted foul, vile, and noxious odors, stenches, etc., to emanate therefrom, etc.; that, by reason of said odors, stenches, and smells, plaintiff’s said premises and dwelling-houses have been rendered…