WALKER, V. C.

Bill for injunction by Miles M. Rausch against Theodore Glazer, Jr., and others. On final hearing on pleadings and proofs. Injunction granted.

Coddington & Swackhamer, for complainant. William Newcorn, for defendants.

WALKER, V. C. The bill is one for an injunction to restrain a nuisance. The complainant is the owner of a farm in Fanwood township, Union county, and has been such for several years last past. Adjoining to the eastward are certain premises occupied by the defendant Glazer, as lessee from the defendant Guttridge, who is the owner. Glazer conducts upon the premises what is generally called a "rendering" establishment; that is, he collects dead animals, carts them upon the premises, and there dismembers them, boiling the parts for the making of fertilizers, etc. The complaint is that there arises from the factory upon the defendant's premises odors of the foulest and most nauseous kind, which, especially in the times of an east wind, are wafted over the complainant's premises, nauseating and making sick himself and the members of his household.

The complainant testified that his house and premises are from one-quarter to one-half a mile from the defendant's fertilizer factory; that they frequently smell foul odors, the last being about two weeks before the first day of the hearing in this cause, which was December 6, 1907. In March, 1907, he went upon the defendant's premises and counted 87 dead horses and cows lying about the place; that the odors emanating from the factory have made him sick at his stomach and driven his children from the fields; that he has wakened up at night and closed the windows to keep the stench out. His wife, Rhoda Rausch, testified that these odors came on easterly winds two or three times a week and down to the then present time; that she smelt the odors in her house, and they affected her stomach; has had to close the windows when eating; had to put windows down at night; that members of her family were often driven from the fields. The complainant's daughter, Edith Rausch, testified that she helped him in the field within the last three years, and detected the odor from the fertilizer works sometimes two or three times a week, according to the way the wind was; that it made her sick at her stomach; that two or three times she had been driven from the field by it. Complainant's daughter, Mrs. La Forge, who lived in Newark for the last year and a half, testified that before she went away she smelled the odors frequently, had to close windows when making beds, and had to close windows at night. Dr. Frank M. Wescott, a member of the Fanwood townshipboard of health, testified that in pursuance of complaints received he went down to Glazer's and found there apparatus for grinding flesh and houses for drying; had seen dead animals there on two or three occasions ; sometimes they were decaying, sometimes not; was there several times when nobody could find fault, the premises being all cleaned up; that in March, 1907, he saw about 75 horses there that had been frozen and were thawing out; on another occasion there were 15 or 20 horses decaying, and odors coming from them. He said that a place of that kind could not be run without some odor, that he could not work at such a factory, and that, while men that work there can stand it, the people in the neighborhood are annoyed by it. Raymond Schenck, a carpenter from Plainfield, testified that within the last two or three months he had been near Glazer's place, directly across the road, putting up a pigeon plant; started in October and finished in November, 1907. He was there five weeks. There was a very disagreeable smell coming from Glazer's place. Damp mornings it smelled like decaying animals. He could not eat his meals when he got home. Charles F. Haas, who had lived opposite Glazer's about two months, detected odors decidedly objectionable and was made ill a couple of times. Charles Frome lives in Fanwood township, had worked in the neighborhood of Glazer's, and said that when the wind was blowing from Glazer's factory he would have to shut down the window, because of the sickening odor which upset his stomach. Mrs. Josephine Mellick, who lived about one-half a mile from Glazer's factory to the southwest, testified that she had detected odors from the works, the last time being in October or November, 1907, but it had been going on for the last three years. The odor is very unpleasant and made her feel sick. She had to go in the house and shut down the windows. Lenard Mellick, her husband, corroborated her.

Testimony of a similar character was given by Walter Mellick and wife, Frank Schenck, Frederick M. Masher, Sophia Wittison, Van Fleet Ryno and wife, Julius Teitz, D. Foster Updyke, Peter Newman, Ernest Teitz, Herman Katsch, Samuel Sabocher, Albert Ryno and wife, and Kate Teitz. John Maier testified that he lived about 500 feet from the defendant's place; that it was very filthy: that he hauled dead animals in and dumped them in the yard 300 or 400 feet from the witness' house, and left them there until they rotted. On the day he testified he said about COO feet from his house were a lot of dead horses. He went down there the day before, and they stunk so he could not go near them. He and his children had to quit work in the fields and were made miserable in the house; had to shut up the house in summer time. He was corroborated by his wife. Dr. Hunt, assistant medical inspector of the state board of health, testified that he had been to Glazer's three or four times, and noticed foul odors each time as the result of decomposition of animal matter; the works being in an unsanitary condition when he last inspected them, which was about August. 1904. There were several carcasses there, and maggots, flies, and oozing matter. Liquids from kettle flowed down over the swamp. Several of the witnesses testified that they were made to vomit by reason of the nauseating odors that came from the factory at times.

The defendant's first witness was Edith Parsell, who testified that she had lived for same three years across the way from Glazer's, and lived there about two years ago. She smelled odors, but they never made her sick; and she said that if a storm came up, and it was damp, you could smell it, but it never bothered her. Harry C. Van Amburg, a surveyor, testified that he made a survey on Glazer's place August 27, 1900. When he went down there he detected a smell, and saw one or two carcasses lying around, and could eat his lunch 200 feet away. They were not working. A great number of witnesses, most of them living in the neighborhood, testified that they were not annoyed by odors emanating from the factory. Such was the testimony of Charles Payne, for instance. He said the factory was northeast from him; that he was a farmer, but had never been compelled to leave the fields by reason of smell, or to close the doors; had been on the factory premises, last time in May 5, 1907. There were three animals there, inside the building, that had not been cut up, and three or four horses that had been cut up ready for cooking, and all looked to have been recently brought in. Theodore Glazer, the defendant, testified that he started gathering dead animals about four years ago; that he would extract fat and oil from them, and turned the rest into fertilizer; that he used what is called the open tank process until 1906, and during that time complaints were made once or twice a year; but in the summer of 1900 he installed the system known as closed tanks, which, when filled, were tight, and the exhaust from them went through pipes covered with water and under the fire box, and was then drawn up through the flues; that after the installation of the new plant there had been odors but a few times, the last being in August, 1907, when a pipe burst, but which was immediately repaired. He said after the steaming the tank water is taken in barrels and spread on the farm, sometimes two or three barrels full, and the juice and fluids from the animals are taken up in buckets and put into the dryer, when the drying process takes place.

I am persuaded that Glazer's factory la more or less of a nuisance in the neighborhood in which it exists. He does a very large business, collecting animals from Plainfield,Newmarket, Bound Brook, Watchung, Warrenville, Martinsville, Westfield, Cranford, Rah way, Woodbridge, Perth Amboy, and Metuchen. Whether or not there is any odor from the exhaust after it runs through the water and is taken up through the flues, nevertheless there must be a great odor from the animal matter on the place, and from the water which is thrown on the farm, and the juices and fluids that go into the dryer, and from the ooze that runs into the swamp and flows into Mrs. Wittison's meadows.

In support of the law applicable to the facts in the cause under consideration, I shall cite but two cases: Board of Health v. Lederer, 52 N. J. Eq. 675, 29 Atl. 444, and Leeds v. Bohemian Art Glass Works, 63 N. J. Eq. 619, 52 Atl. 375. The facts in the case at hand are very like those described in the fourth syllabus of Board of Health v. Lederer, which reads as follows: "Where it appears that the odors and gases from a fat-rendering establishment produce headache, nausea, vomiting, and compel citizens to close their doors and windows, both by day and at night, and interfere with them in the enjoyment of their meals and of sleep, such establishment is a nuisance, and it is the duty of the boards of health, in such cases, to take proper measures for its abatement."

In Leeds v. Bohemian Art Glass Works the complainant inveighed against a nuisance created by repellent and excessive noises in, and the throwing off of smoke and soot from, the recently erected glass house of the defendant upon property which almost immediately adjoined the complainant's property. The defendant denied that the noises made in the use of its property were in any way distinguishable from other noises produced in the neighborhood by various itinerant musicians, and persons shouting recommendations of shows, brass bands, and the like, admitting that it had in use furnaces, but claimed that they were especially constructed for the purpose of effecting perfect combustion, entirely free from smoke, and insisted that, in that respect it had been eminently successful. In this case (Leeds v. Bohemian Art Glass Works) a number of witnesses testified to the operations of the works and were substantially unanimous as to the frequency and offensiveness of the noises and odors of which complaint was made. Said Vice Chancellor Grey in his opinion, at page 622 of 63 N. J. Eq. and page 377 of 52 Atl.; "Several theories were advanced, and, to some extent, supported by testimony, to show that the defendant's plant, as used, could not have produced such noises and odors as are the subject-matter of complaint But theories and conjectures go but a small way to refute facts of actual happening, proven by those who suffered from the incidents narrated."

The nuisance said to exist upon the Glazer place being established by satisfactory testimony, that proof is not overcome by testimony of a negative kind, of which character was most of the testimony adduced on behalf of the defendants. Testimony of some of the neighbors that they are not annoyed does not disprove that the complainant and his family are nauseated. In my judgment, the way in which the Glazer place is conducted constitutes a private nuisance, and operates as a continuous injury to the complainant in the lawful enjoyment of his property, and he is entitled to have that nuisance abated.

On the filing of the bill an injunction issued, commanding the defendants to desist and refrain from collecting and depositing the carcasses of dead animals upon the premises in question, and from reducing such carcasses to grease, fertilizers, or other product upon those premises. The defendants filed answers and moved to dissolve the Injunction. On the hearing of that motion, and on July 1, 1907, an order was made modifying the injunction so far as to permit the defendant Glazer to carry on the business of manufacturing fertilizers on the premises described in the bill of complaint, provided it be done in such manner as not to produce or give out offensive smells affecting the health or comfort of the complainant or his family, or diminish the capacity of the complainant's property for ordinary use and enjoyment, nor materially impair its value by destroying physical comfort and menacing the health of the complainant and his family while on his premises described in the bill of complaint. A rendering establishment does not appear to be a nuisance per se, and I presume the modification of the injunction, which was granted by Vice Chancellor Bergen, went upon the theory that the defendant Glazer had a right to operate his factory in a lawful way; that is, so as not to injuriously affect the complainant as set forth in the modifying order. I will advise the terms of the injunction after hearing counsel. The application must be upon notice to counsel for the defendant.

My present impression is that the injunction should not go against the defendant Guttridge in any respect. At the time of settling the terms of the injunction I will hear further argument with reference to the alleged connection of the defendant Guttridge with the nuisance existing upon the premises demised by him to Glazer, and upon which premises the latter operates the rendering establishment in question.