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State v. Sommers Rendering Co.

Decided: March 27, 1961.

THE STATE OF NEW JERSEY, EX REL. THE BOARD OF HEALTH OF THE TOWNSHIP OF SADDLE BROOK, PLAINTIFF-RESPONDENT,
v.
SOMMERS RENDERING COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT. SOMMERS RENDERING CO., PLAINTIFF-APPELLANT, V. BOARD OF HEALTH OF THE TOWNSHIP OF SADDLE BROOK, IN THE COUNTY OF BERGEN, DEFENDANT-RESPONDENT



Conford, Freund and Kilkenny. The opinion of the court was delivered by Kilkenny, J.A.D.

Kilkenny

[66 NJSuper Page 336] In these consolidated actions, the Superior Court, Chancery Division, granted a judgment whereby it enjoined Sommers Rendering Company from using its premises and conducting its fat rendering business in the Township of Saddle Brook, Bergen County, New Jersey, "in such manner as to cause the emission and prevalence of foul and noxious odors in the vicinity surrounding said premises." It further ordered that "unless the defendant immediately remedies and corrects certain conditions in its premises contributing to the existence of the foul and noxious odors and operates its business in such a way as to eliminate or substantially abate the existence thereof, then defendant

shall cease the operation of its rendering plant or so much of it as relates to the rendering, cooking and storage of waste animal products and of exposed waste waters."

The Sommers Rendering Company appeals from this judgment, contending that the plaintiff was not entitled to the injunction and that the judgment of the Chancery Division exceeded the jurisdiction of the court.

The plaintiff local board of health brought the action pursuant to the authority vested in it by N.J.S.A. 26:3-56 which provides:

"The local board, instead of proceeding in a summary way to abate a nuisance hazardous to the public health, may institute an action in the Superior Court in the name of the State, on relation of the board, for injunctive relief to prohibit the continuance of such nuisance."

At the trial the defendant offered no testimony or other evidence to contradict the proofs submitted by the plaintiff board of health. The facts adduced at the trial establish the following. The defendant has operated a rendering plant in the Township of Saddle Brook for at least 50 years last past. The rendering consists of cooking and pressing waste butcher-shop fats and dead animal stock to produce a tallow, with cracklings, used for animal feed as a side product. The plant is located in an area which was rural and sparsely settled in years gone by, but which gradually has become considerably populated with residences. The nearest residences at the time of the hearing were about 600 feet south and 800 feet north of defendant's premises.

A number of citizens in these relatively nearby residences and the secretary of the local board of health established by their testimony that at various times during the year, especially in the hot summer months, or when a strong wind is blowing in the direction of their homes, unbearably foul and noxious odors emanate continuously from the defendant's plant, except on days when it is not operating. These offensive smells permeate the atmosphere and befoul the homes and clothing of these residents, causing some of

them to become ill, producing extreme discomfort, dulling their appetites, spoiling their meals, and interfering with normal social and family functions. It is necessary to keep their doors and windows closed to minimize these obnoxious odors. These odors were variously described by the several witnesses as "sickening"; "nauseating"; "a very obnoxious smell and it is very upsetting to the stomach"; "very vile"; as "one from which you get a burning sensation in the nostril"; "it just seems to get into the nostrils and down and upsets." One of the witnesses testified: "It is hard to describe, a combination of rotten eggs and formaldehyde." The foregoing characterizations sufficiently indicate the nature of the "foul and noxious odors" restrained by the injunction of the trial court. They unmistakably emanated from the defendant's premises. Their offensive nature and disturbing effects clearly constitute them a nuisance hazardous to the public health.

The Superior Court has jurisdiction to abate such nuisances on the application of a local board of health. N.J.S.A. 26:3-56. The corruption of the air by noisome odors and smells, to the annoyance and inconvenience of the public and hazardous to the public health, constitutes a public nuisance suppressible by injunction at the suit of the local board of health. The guilty party is also subject to criminal prosecution. Garrett v. State , 49 N.J.L. 94 (Sup. Ct. 1886). Prior to its revocation, defendant had a permit to operate from the local board of health. But, as noted in Garrett v. State , a permit does not authorize the conduct of the business in such a way as to create a public nuisance. In Garrett the business was that of extracting fats from dead animals and converting the rest into fertilizers. The process created nauseous and offensive odors to an extent sufficient to create a public nuisance. Garrett's conviction of maintaining a public nuisance was affirmed. This case was cited with approval in Board of Health of Weehawken Tp. v. New York Central R. Co. , 4 N.J. 293, 299 (1950), in which the defendant railroad's emission of smoke of proscribed

density within the municipality was denounced as a public nuisance and convictions for violating the local health ordinance were affirmed.

There is nothing novel or unusual about the grant of injunctions against fat rendering plants to abate their foul and noxious odors. In State v. Neidt , 19 A. 318 (Ch. 1890) (not officially reported), in which a local board of health sought injunctive relief against a fat rendering establishment, the evidence showed that more than a dozen individuals living in the vicinity were made sick at their stomachs or nauseous by the odors; that some lost their appetites and were unable to eat their meals; and that they were forced to close windows to keep out the odors which continued with some ...


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