Petition for Writ of Certiorari — Degelos Bros. Grain Corp. v. City of New Orleans

Supreme Court brief1966

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Office-Supreme Court, us. |

FILED

JOHIN F. DAWS, CLERK f

Supreme Court of the United States

OCTOBER TERM, 1965

. ies 10 50 | a

DEGELOS BROS. GRAIN CORPORATION,

Petitioner,

versus

CITY OF NEW ORLEANS AND HEALTH DEPARTMENT

CITY OF NEW ORLEANS,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF LOUISIANA

HENICAN, JAMES &

‘ CLEVELAND

MURRAY F. CLEVELAND

225 Baronne Street, Suite 2601

New Orleans, Louisiana 70112

Attorneys for Petitioner

SF.

INDEX

OPINIONS BELOW ...... eee hee 5 RR ee

JURISDICTION ......... AA ADOT

QUESTIONS PRESENTED ..................

CONSTITUTIONAL PROVISIONS and ORDI-

po Bt 5s 3 > Rn ar ea

STATEMENT OF THE CASE RE

- 8)

Original Petition in State Proceedings

Original Answer Raising Federal Question

State Court Injunction 3

Suspensive Appeal to Louisiana Court of

. Appeal, Fourth Circuit, Opinion and De-

cree

Application for Rehearing Refused

Application to Supreme Court -of Louisiana

for Writ of Certiorari or Review |

Stay Order Issued by ns a aaa Court of

Louisiana

Extension of Time by Supreme Court of

the United States for Filing this Petition

for Writ of Certiorari

REASONS FOR GRANTING THE WRIT,

ARGUMENT, AND AUTHORITIES ..........

G. CONCLUSION ........ eas ee 1

Rar

7 a

Page

APPENDIX A ORIGINAL PETITION, AN-

SWER, JUDGMENT AND

A | ; REASONS FOR JUDGMENT

OF TRIAL COURT ..........

APPENDIX B OPINION AND DECREE OF

LOUISIANA COURT OF AP-

_PEAL, FOURTH ‘CIRCUIT ..

NDIX C. ~ DECREE OF SUPREME

COURT OF LOUISIANA DE-

NYING WRIT OF CERTIO-

RARI OR REVIEW ....°.....

AUTHORITIES:

CASES:

Allen v. Albright, 151 So. (2d) 554 .......... ee

Amacker v. Amacker, 146 So. (2d) 672 ........

Cooley v. Meridian Lumber Co., 195 La. 631, 197

Se ee rr rey Py ee Pre Feb ee eens ie.

Crump v. Carnahan, 155 La. 648, 99 So. 493 ......

_ Galouye v. A. R. Blossman, Inc., 32 So. (2d)

Hobson v. Walker, 41 So. (2d) 789..............

LeBlanc v. Orleans Ice Manufacturing Co., 121.

ie | Se Beer ee rr

Lewis v. Behan Thorn & Co., 28 La. Ann. 130 ..

Meyer v. Kemper Ice Co., Inc., 180 La. saul

158 8 UME g go os Woetn te eae he rene

: |

Ill se

AUTHORITIES (Continued)

te a Page

Morris v. Putsman, 166 La. 14, 116 So. 557... 12

y Woods v. Turbeville, 168 So. (2d) 915 .......... 11

CONSTITUTIONAL PROVISIONS:

Constitution of the United States of America

Amendment| XIV, Section 1....... ey ee 4

ORDINANCE: ein

Ordinance No. 828 M C S (The Code of the City

of New Orleans), Section 29-10 .....°........ 4.

MISCELLANEOUS: _

28 American Jurisprudence, p. 519, et seq., “In-

junctions,’’, Section 29 ............... irae 12

? f

Louisiana Code of Civil Procedure, Article

eee ee acs ..

Louisiana Civil Code Asticles 666, 667, 668 and

Ae GS PFS gs aoe aia ea pe eae Oy 11

. IN THE — z

SUPREME COURT OF THE UNITED STATES

' ~October Term, 1965

5 ek eae ae

No. }

DEGELOS BROS. GRAIN CORPORATION,

. Petitioner,

versus

CITY OF NEW ORLEANS AND HEALTH

DEPARTMENT CITY OF NEW ORLEANS,

‘ f “Respondent.

‘PETITION BOR om OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF LOUISIANA. |

’ TO THE HONORABLE SUPREME COURT OF THE

UNITED STATES OF AMERICA AND THE CHIEF

JUSTICE AND ASSOCIATE JUSTICES THEREOF:

Degelos Bros. Grain ‘Cerporation seeks a writ of

certiorari to review. a final decree of the Supreme

Court of Louisiana rendered September 30, 1965, re-

fusing to grant a writ of certiorari or review to the

Court of Appeal, Fourth Circuit, State of Louisiana,

_ and in connection therewith, respectfully submits the

following:

A. OPINIONS BELOW

The decree of the Supreme Court of Louisiana (Ap-

pendix C, infra p. ) has not been reported, The stated

reason for refusing to grant a writ of certiorari or re-

. ¢

t &-

.view of the Louisiana Fourth Circuit Court of Appeal

was: “No error of law under the facts found ‘by the

Court of Appeal”. |

“The opinion pa decree of the Louisiana Court of

Appeal, Fourth Circuit (Appendix B, p. 43) have not as 5

yet been published.

The judgment of the Civil District Court and the

Reasons fur Judgment (Appendix A p._29) “have not

been pens: :

-B. JURISDICTION

_ aes |

a) ‘The abovementioned final decree of the Supreme

Court was entered on September 30, 1965, the day

of rendition. |

; é

b) No rehearing was applied for as none is permitted

by Louisiana law or practice where a writ of cer-

tiorari or review has been refused.

c) On December 28, 1965, an order was rendered by

Mr. Justice William J. Brennan, Jr., extending the

time for filing a petition for writ of certiorari to

and including February 23, 1966.

d) The jurisdiction of this Court is invoked under

28 U. S. Code, Sec. 1257 (3), because the ordinance

upon which the proceedings below were based is

repugnant to the Constitution of the United States,

as such ordinance is written and/or as it has been

construed and applied in this case.

C. QUESTIONS FOR REVIEW ™

‘fhe questions presehted for review are:

| @) Cana municipal ordinance which is by its own

: terms effective only where injuries to health are.

involved be used as a basis for an injunction to

close a legitimate business operation where the

- record shows, the plaintiff finally concedes, and the

- courts have held that 7 rey HAZARD IS”

INVOLVED?

Should operation of a lawful business in a heavily

industrialized area be enjoined where it gives no

serious or material discomfort or inconvenience to

the persons living in the area, and where equal

protection is denied by permitting other plants to

operate in the same area under the same ordi-

nance?

-Can such a business operation be enjoined on a

basis of testimony of persons who are admittedly in

ill health, so as to be unusually susceptible to odors

‘of any kind, or is the test rather a question of

whether the conditions are ‘of such a nature as to

produce discomfort and annoyance to the ordjnary

sensibilities of pormal perd@ns?

Should a. i who may well be himself

unusually susceptible to odors, and who cannot be

subjected to cross examination, be permitted to

base his judgment upon his own personal and

subjective reaction to an odor and, in effect disre-

gard the overwhelming preponderance of the evi-

ceqe’ : ay

» &

* FP

ee ee ay ee jes Ca Cite tA

e€) Does the injunction issued in this case deprive peti-

tioner of the right to use its property without due

process of law, and deny it the equal protection

guaranteed by the Fourteenth Amendment?

D. CCNSTITUTIONAL PROVISIONS and ORDINANCE

INVOLVED —

The provision of the Constitution of the United States

involved in this case’ is Amendment XIV reading, in

pertinent part, as follows:

“Section 1, * * * No State shall make or en-

force any law which shall abridge the priv-

ileges or immunities of citizens of the United

States; ‘nor shall any State deprive any per-

son of life, liberty, or property, without due

process of law; nor deny to any person within

its jurisdiction the equal protection of the.

laws.’

The Ordinance involved is Ordinance No. 828 MCS

(The Code of the City of New Orleans), Section 29-10,

reading as follows:

“Section 29-10. Substances deleterious to

health not to be kept in

city.

No distiller, brewer, keeper of any workshop,

manufactory or laboratory, warehousekeeper

or owner, soap-boiler, chandler or other per-

son shall have, keep, use, produce or store,

within the city, foul, fetid, putrid or offensive

or injurious matters, substances, odors or va-

pors liable to injure health and on complaint of

the Department of Health, unless the evil com-

plained of be at once discontinued, the Direc-

tor of Health shall order such places to be

forthwith closed and such business stopped} the

ntinuance of which is liable to injure health.”’

emphasis added).

E. STATEMENT OF THE CASE

The City of New Orleans and the Health Depart-

ment, City of New Orleans sought an injunction to en-

join the operation of a grain dehydrating plant op-

* erated by Degelos Bros. Grain Corporation in a irl oly

industrialized area near the Mississippi River wa

front in New Orleans. The entire operation consists of

the removal of moisturefrom grains; no chemicals are

used; nothing is manufactured; and the only feature

of the operation found objectionable is an odor detect-

able under certain conditions of wind direction, tem-

perature, humidity, etc. The odor was described by

most of the witnesses (for both sides) as a “popcorn”

odor. On the other hand, the plaintiffs based their peti-

tion for an injunction upon a City Ordinance which pro-

hibits the production or storing of ‘‘foul, fetid, putrid

or offensive or injurious matters, substances, odors or

vapors LIABLE TO INJURE HEALTH”.

After a trial on the merits, where the testimony of

numerous lay and expert witnesses was heard, it was

determined, and counsel for the City of New Orleans

and its Health Department CONCEDED that the op-

erations of the plant NOT produce smoke, dust,

poisonous or toxic fumes, noise, vibration or objection-

able features of any kind. In short it is now clear, and

the etter Courts have found, that no health hazard

whatsoever is involved in this litigation. The trial»

reached his own private, personal opinion that the.

plant emitted an odor which he did not like. He‘was |

not subject to cross examination, of course, on his own |

judge visited the plant and the arch

unusual susceptibility, or on any other point of de-

fense.

The injunction was sought on allegations that serious

and irreparable damage was being caused. On the con-

trary, it is most significant that the trial judge allowed

45 days after the date of the judgment before it became

effective. Thereafter, he exercised his discretion in

allowing a suspensive appeal on a $250.00 appeal bond.

And the Supreme Court of Louisiana has granted and

extended a stay order during the pendency of this ap-

plication. It is clear, therefore, that no Louisiana Court

Fai that the health of its citizens is in eeeperey.

Petitioner’s principal stockholders have/a lifetime of

experience and their life savings: invested in a plant

which is located in an area zoned for heavy, industrial

use in the midst of the bustling waterfront activities of

one of the nation’s most active seaports.

It is obvious to anyone familiar with these proceed-

gs from their inception that a tremendous amount of

int was applied to certain officials in the muni-

cipal government of the City of New Orleans by a few

militant and extremely aggressive women in the im-

mediate neighborhood of the plant operated by peti-

tioner, virtually all of whom admitted under cross ex-

amination that they, or members: of their immediate

family, were unusually susceptible to odors of all kinds.

It is equally clear that the City authorities ‘succumbed

to this pressure and instructed the City attorney to file

these proceedings, and that political opportunists then

distributed circulars throughout the neighborhood in an

effort to capitalize on this situation, to gain votes for

themselves. Similarly, it is evident that, after hearing

all of the evidence, the trial judge concluded that all

parties would be satisfied with a ‘““compromise’’ judg-

ment granting the injunction, but allowing Degelos

Bros. Grain Corporation 45 days within which to elim-

inate all Sdors from their plant operations. Unfor-

tunately, it has been impossible, despite substantial

expenditures, to eliminate every trace of odor, just as

it would undoubtedly be impossible for a bakery or a

coffee roaster to rid itself of all odors. The’ compromise

nature of the judgment and the absence of real injury

to any complaining neighbors is further emphasized by

the action of the trial judge in granting. a suspensive

appeal, requiring an appeal bond of only $250.00., as

pointed out above. , ;

—— in

ws Th¢ Court of Appeal for the Parish of Orleans made

4 ~ Pu

- 3 serious error in-stating (page 5 of its opinion, Appen-

dix B p. 48) that “‘it is conceded that there are methods

whereby the odors may be eliminated by defendant’”’.

There is absolutely nothing im the record in any court to

support this erroneous statement and conclusion of the

Court of Appeal, which undoubtedly served as the

premise for its denial of relief. 5

The Federal quesiions sought to be reviewed were

raised by Degelos Bros. Grain Corporation, the de-

fendant in the injunction proceedings filed in the

Civil District Court for the Parish of Orleans, in Article

XI of the original answer, reading as follows:

‘“‘Deféndant has incurred substantial obliga-

tions with local banks and other parties in con-

nection with the acquisition, installation and

operation of its plant; and the granting of the

injunction sought herein would destroy defend-

ant’s business and would deprive defendant of

its rights to equal protection and due process

under the Constitutions of the State of Louisi-

ana and the United States of America (em-

phasis added).

In deciding to grant an injunction, effective 45 days

after rendition of judgment, the trial judge made no

reference, either in the judgment or in the reasons for

judgment to these constitutional issues. ~The basis for

- the decision of the trial court is to be found in that

portion of the reasons for judgment entitled ‘‘Opinion’”’

where Judge Carriere pointed out that ‘‘* * * the de-

fendant is in good faith and has on order, with the

Buffalo Forge Company, certain equipment which is

due to arrive in New Orleans on June 5, 1964, and

which in all probability will solve the problem.” (Ap-

pendix A, p. 42)

In injunction proceedings, the law of Louisiana gives

the trial judge a discretionary right to grant or deny

a suspensive appeal. The trial judge granted a suspen-

sive appeal upon a nominal bond of $250.00. (Appendix

A, p. 29) 3

These constitutional issues were raised in the Court

of Appeal for the Fourth Circuit, State of Louisiana by

making part of the record on appeal a complete .copy

of the answer filed in the lower court, including para-

graph XI, quoted above.

The Court of Appeal disposed of this issue as follows:

‘“‘(Defendant-Appellant’s contention that the is-

suance of an injunction closing its plant would

unfairly cause defendant tremendous finan-

cial loss and would deprive it of its right to

equal protection and due process of law is

without merit.”’ (Appendix B p. 48)

The Court of Appeal denied a rehearing, without as-

signing any reasons.

These. constitutio al issues were presented to the

Louisiana deans Quurt by attaching to the Applica-

tion for a Writ of Certiorari or Review a complete

copy of the answer filed #2 the court below, including ’

paragraph XI, quoted above. The Supreme Court of

Louisiana did not pass upen these issues. It simply re-

fused to grant a writ, stating ‘No error of law under

the facts found by the Court of Appeal’. (Appendix.

C p. 50)

On October 25, 1965 the Supreme Court of Louisiana

granted a 60 day Stay Order pending application to the

Supreme Court of the United States(for a Writ of Cer-

tiorari and on December 23rd, 1965 this Stay Order was

extended through February 23, 1966.

On December 28th, 1965, Mr. Justice Brennan, Jr.

signed an Order extending the time for filing a peti-

tion for a writ of certiorari in this Court to and in- .

cluding February 23, 1966.

™y

| 10

F. REASONS FOR GRANTING THE WRIT, ARGU-

MENT, AND AUTHORITIES

The reasons for granting the writ in this case are as

¢ follows:

The ordinance upon which the petition in the lower

court was based is clearly limited to a case where

the activity or odor complained of is injurious to

health. The record shows, and during the course of

the trial counsel for the City of New Orleans and

its Health Department admitted in open court, that

the operation of defendant's plant involves only a

question of odor and does not involve anything in-

jurious to health. Experts testifying for Degelos

Bros. Grain Corporation stated unequivocally that

no health problem whatsoever is involved. This fact

was found by the trial judge and his findings were

affirmed by the Court of Appeal. Accordingly the

interpretation and applcation of the City Ordi-

nance which resulted in the issuance of an injunc-

tion against petitioner violates its constitutional

rights by denying it due process and equal protec-

tion of the laws. Numerous other plants in the im-

mediate vicinity of petitioner’s plant are emitting

odors of all kinds, as clearly reflected by the rec-

ord; and it is grossly unfair and unconstitutional

to deny petitioner the right to operate plant

merely upon the basis of the testimony of/a few

neighbors who were unusually susceptible to odors ©

of all kinds, and who were incited by political op-

portunists. | )

The area in which defendant’s plant is located is

zoned for heavy industrial use and is situated along

‘as

the Mississippi River waterfront, in the midst of

manufacturing plants, factories, railroads, ship-

ping, and numerous other activities, all of which

produce odors of one kind or another.

3. Petitioner and its stockholders have invested con-

siderable sums of money and years of experience

in the plant which is the subject of this litigation;

and, unless a writ is granted and the injunction set

aside, substantial and irreparable injury will re-

' sult to petitioner and its stockholders.

4. Although the injunction is couched in terms whica

purport to allow petitioner time to completely elim-

inate all odors, it has been impossible to ac-

complish this result, despite the expenditure of |

tremendous sums of money for engineering, ma-

chinery, ‘equipment, and expert advice. In much

the same way it would be impossible for a bakery

‘or coffee roasting plant to eliminate all traces of

“odor.

_- §. Any individual who is actually damaged by the

‘popcorn odor” allegedly emitted from petition-

er’s plant would have an adequate remedy by fil-

ing an individupl suit for damages.

AUTHORITIES:

A person is entitled¢to use his own property in any’

way he sees fit so long as he does not violate any posi-

tive law or abuse his privilege by unduly interfering

with the rights of his neighbor. Louisiana Civil Coda

Articles 666, 667, 668 and 669; Woods v. Turbeville, 168

Sol 2 915; Allen v. Albright, 151 So. (2d) 554.

ene

Bircinkiicasaceivat Patines

sort

aeatil . .

ANS eR me 38 Ngati earth

2 12

A lawful business cannot‘be abated as a nuisance un-

less the business is operated in such a way as to give

serious and material discomfort and inconvenience to

those living in close proximity thereto. Galouye v. A. R.

‘Blossman, Inc., 32 So. (2d) 90. a

\ In order to Constitute a nuisance the use of property

must be of such character and to such an unreasonable

_degree as to produce actual discomfort and annoyance

to the ordinary sensibilities of a normal person. Woods

v. Turbeville, supra; Hobson v. Walker, 41 So. (2d) ‘

789; Meyer v. Kemper Ice Co., Inc., 180 La. 1037, 158

So. 378; Morris v. Putsman, 166 La. 14, 116. So. 557;

LeBlanc v. Orleans Ice Manufacturing Co., 121 La.

250, 46 So. 226; Lewis v. Behan Thorn & Co.; 28 La.

Ann. 130; Crump »v. Carnahan, 155 La. 648, 99 So. 493.

A writ of injunction is properly issued in a case of this

kind only when the plaintiff proves that irreparable in--

jury, loss or damage may otherwise result. Article

3601, Louisiana Code of Civil Procedure; 28 American

Jurisprudence, p. 519, et -seq., “‘Injunctions,”’ Sectioni

' 29; Cooley v. Meridian Lumber Co., 195 La. 631, 197 So.

2585; Amacker v. Amacker, 146 So. (2d) 672.

G. CONCLUSION

A tenianed by the standards to which sida Sulit is

accustomed, the present case may seem insignificant.

However, igure of a million dollars invested in a

plant, plus experience over a period of at least two

generations, is of vital importance to petitioner and its

stockholders. The Louisiana Courts have deprived peti-

tioner of its rights of due process and equal protection

guaranteed by the United States Constitution, partic»

—

ularly in view of the fact that the basis for thesg; pro-

ceedings was a Municipal Ordinance expressly limited

to conditions INJURIOUS TO HEALTH, whereas the

City of New Orleans and its Health Department aban-

doned in the lower court all contentions that a health

problem is involved in the present litigation. |

A great deal more harm can be dor to petitioner by

denying it a right to operaté than can possibly result «°

from permitting it to operate in a thriving seaport”

and manufacturing center such was the City of New

Orleans. Accordingly, a writ of certiorari should issue.

_ to the Supreme Court of the State of Louisiana and, in

due course,*the judgment of the lower court should be

set aside. .

E Respectfully submitted, :

? ses 7

- HENICAN, JAMES &

be CLEVELAND” -._ :

_ MURRAY F. CLEVELAND.

“~Suyite 2601, 225 Baronne Street

New Orleans, Louisiana 70112

Attorneys for Petitioner

BR,

CERTIFICATE OF SERVICE

‘I, MURRAY F. CLEVELAND, hereby certify that a’ ’

. copy of the foregoing petition for a writ of ‘certiorari

has been served upon Alvin J. Liska, counsel of record

in the’Lower Court for the.City of New Orleans and |

Health Department, City of New Orleans, by forward-

ing same to him at his correct post office address in .

the City of New Orleans by U. S. Mail, postage prepaid,

and deposited in the Post Office in New Orleans, Louisi-

ana on this day of February, 1966.

MURRAY F. CLEVELAND,

Counsel of Record for

Petitioner

—

APPENDIX “A”

- /

CIVIL DISTRICT COURT FOR THE

PARISH OF @RLEANS

STATE OF LOUISIANA ~

NO. 417-595 DIVISION “ ” DOCKET: 5

CITY OF NEW ORLEANS AND

‘HEALTH DEPARTMENT, CITY

OF NEW ORLEANS —

VERSUS

‘DEGELOS BROS. GRAIN CORP.

Filed: Nov. 20, 1963

(Signed) A. COPPERSMITH

Deputy Clerk see

PETITION FOR INJUNCTION

The joint petition of:

(1) THE CITY OF NEW ORLEANS, appearing

herein through HON. VICTOR H. SCHIRO, its Mayor,

and |

2), THE HEALTH DEPARTMENT, City of New

Orleans, herein appearing through RODNEY C.

JUNG, its Director, and through ALVIN J. LISKA,

‘City Attorney, and LEONARD A. CALCAGNO, Assis-

> *

eo UAE x Bpbeled Ope ee

tant City Attorney and trial attorney herein, respect-

fully represents that:

Defendant herein, DEGELOS BROS. GRAIN COR-

PORATION, hereinafter referred to simply as ‘“‘DE-

GELOS”’, is a corporation organized under and pursu-

ant to the laws of the State of Louisiana. DEGELOS

has its principal place of business at the foot of Na-

poleon Street, near the Mississippi River, in the gen-

eral area of thé 4700 block of Tchoupitoulas Street in

this City. ve

a | II.

DEGELOS possesses, controls and operates, through

its. officers, agents and/or employees a dehydrating

plant at its place of business, described ‘in Article I

above, which plant consists primarily of one or more

rotary kilns which are heated by extremely hot gases,

which are created by the burning of natural gas in the

said plant.

ITI. a

The said plant has been operated by DEGELOS since

approximately the early part of January of 1963. ee

IV. | of ee

DEGELOS obtains from various breweries in this

City their used, spent, refuse and sour mash, which

consist of organic substances composed of rice, bar-

ley and other organic matter used for the manufac-

ture of beer. The said organic substances are then

placed inthe said rotary kiln, which is then heated to

extreme temperature in ‘order to remove most of the

water from said substances. DEGELOS operates said

plant day and night. After the said organic substances

are dehydrated the residue is sold for use in the manu-

facture of feed for livestock.

As a result of the heating of the said organic sub- ‘

stances DEGELOS has caused, is causing and will \

cause the infiltration, of obnoxious, vile, unbearably

stinking, irritating and nauseous odors into the atmos-

phere in an area of more than a nine city blocks radius

_ #rom its plant, in which area citizens of this commyp-

“nity have their dwellings, live and reside. The said

creation of said odors and smoke constitute a nuisance

in fact and in law. eae =

9 wry

- VI.

‘| The said obnoxious, vile, stinking, irritating and

nauseous odors, ‘aforesaid, have deprived, is depriv-

ing and will deprive the following named citizens, in

particular; but not exclusively, of the peaceable use

and enjoyment of their homes and yards:

(18 Mrs. William Myers, 5218 Laurel Street

(2) Mrs. Theresa Gennusa, 5230 Laurel Street

(3) Mrs. William Borgstede, 515 Lyons Street

(4) Mrs. William Kirsch, 607 Bordeaux Street

(5) Mr. Clyde McDaniel, 608°U pperline

(6) Mr. P. Gros, 4857 Tchoupitoulas Street -

(7) Mrs. Samuel Boudreaux, 4737 ‘Tchoupitoulas

—

»%

(8) Mrs. Alvin J. Duvalle, 4719 Tchoupitoulas Street

(9) Mrs. Charles Manson, 725 Napoleon Street ~

(10) Mrs. Thomas Haslauer, 604 Valence Street

(11) Mrs. W. R. Fontenelte, 513 Lyons Street

(12) Mrs. Alfred Gaudin, 4813 Tchoupitoulas Street

(13) Mrs. Elroy Merz, 4721 Tchoupitoulas Street

(14) Mrs. A. Williams; 609 Bordeaux Street

(15) Mrs. F. Roccaforte, 4737-Laurel Street

(16) Mr. A. E. Hayes, 724 Marengo Street

(17) Mr. Philip Fisher, Sr., 4113-Tchoupitoulas Street

VII.

Because DEGELOS operates its said dehydrating

plant day and night and the said citizens, in particular, _

but not exclusively, are deprived by the said operation

of their right to the peaceable enjoyment and use of

their yards during the day or to sit out evenings upon

their porches and/or steps, or use their window fans

or open their windows without being annoyed, molest-

ed or interferred with dnd disturbed by the said ob-

noxious, vile, stinking, irritating and nauseous odors.

The deprivation of the right of the citizens mentioned

in Article VI above, to the peaceable use, possession

and enjoyment of their property by the creation of the

said odors and smoke by DEGELOS constitutes: a

public nuisance and will cause the said citizens and

this community irreparable damage unless a rule nisi

issue herein, ordering DEGELOS to show cause, on a

day and at a time to be set by this Honorable Court

why a preliminary injunction should not issue herein

ordering and enjoining the said DEGELOS, its offi-

cers, agents, and/or employees from creating the said

obnoxious, vile, stinking, irritating and nauseous odors

and nuisance. '

és

VItl.

On May 17, 1963 a notice to cease and desist from

creating the above des¢ribed nuisance was issued to

DEGELOS. In spite of said notice to cease and desist

- DEGELOS has continued to the present, to create said

nuisance in the manner described.

TX.

In the alternative, petitiofiers reaver the allegations

contained in the foregoing paragraphs, Articles I

through VII, inclusive, and aver further that the cre-

ation of the said odors and smoke constitute a nui-

sance per se in that it is violative of Municipal Ordi-

nance 828 M C S, Section 29-10, which provides as

follows: a

No distiller; brewer, keeper of ‘any workshop,

manufactory or laboratory, warehousekeeper or own-

er, soap-boiler, chandler or other person shali have,

keep, use, produce or store, within the city, foul, fetid,

putrid or offensive or ‘injurious matters, substances,

odors, or vapors liable to injure health and on com-

plaint of the Department of Health, unless the evil

complained of be at, once discontinued, the Director

of Health shall order such places to be forthwith

closed and such business stopped, the continuance of

which is liable to injure health. |

The creation of said odors and smoke is detrimen-

tal and injuriousto the citizens of this City of New Or-

leans, especially to the citizens who own property or

reside in the immediate vicinity of the dehydrating

plant hereinaboye described-in Articles I and II, and

the City of New Orleans is without any adequate rem-

edy at law, and therefore, it is necessary that an in-

junction issue herein, prohibiting and enjoining the

said’ officers, agents and/or employees of the DE-

GELOS from ‘operating the said plant in any manner

which will create, or cause to be created obnoxious,

~vile, stinking, irritating and nauseous odors in the vi-

cinity of its plant or anywhere else in the std of New

Orleans. — sa

5. x

In the further alternative, petitioners allege and

aver that the creation of said odors and smoke as de-

scribed above is in direct violation of the Municipal

. Zoning Law‘ and Ordinance of the City of New Orleans

Nd._18,565 C. C. S. and the ordinances amendatory.

thereof. The area in which the DEGELOS plant is lo-

cated is zoned L-Heavy Industrial. This zoning regu-

lation as set forth in the above Ordinance relating to

L-Heavy Industrial provides as follows:

ae———_ .

“Any building or premises may be used for any

other purpose not in conflict with any ordinance of the

City of New Orleans regulating nuisances.”’

Petitioners reaver that the creation of said odors

and smoke as described above specifically violate

Municipal Ordinance 828 — Section 29-10 and therefore

violates the Municipal Zoning Ordinance of the City

of New Orleans as aforesaid.

XI.

That the said violations and the nuisances created

| (Pc

and maintained by defendant constitute public nui-

sances which it is the duty of the petitioners to abate

and terminate, and which, under its police power and

the aforementioned city ordinance must be terminated

and abated in the public interest and for the general —

public welfare, and that of the residents in the neigh-

borhood,:- who together with petitioners are incensed

at the continued and flagrant violations in which de-

fendant persists as herein set forth despite repeated

warnings to cease and desist. :

XII.

Petitioner has no adequate remedy at law and de-

fendant should be prohibited and enjoined from using,

maintaining, causing and/or permitting the violations

herein described. ;

’ WHEREFORE, petitioners pray that the said DE-

GELOS BROS. GRAIN CORPORATION, defendant

herein, be duly cited to appear and answer this peti-

ion, -

rule nisi issue herein, directed to the said DEGELOS

BROS. GRAIN CORPORATION to show cause on the

day and date to be fixed by this Honorable Court why

a preliminary injunction should not issue herein, pro-

hibiting and enjoining the said DEGELOS BROS.

GRAIN CORPORATION, its officers, agents, and/or

ernployees and their successors, from. using its de-

hydrating plant as described in Article I and II of the

herein petition in any manner which will, create or

cause to be created odors which are obnoxious, vile,

stinking, irritating and/or ‘nauseous to.the citizens of

the City of New Orleans. — :

”-

: = : - 3 A . -

~ ~ . « - ° * ee ~ se orese Se bee we wa 7 wore

1 UREA BE 10 in A

Petitioners further pray that, after due proceedings

had, the said preliminary injunction be perpetuated

and that a permanent injunction issue herein to the

same effect. And for all general and equitable relief

in the premises.

(Signed) ALVIN J. LISKA

ALVIN J. LISKA

/ CITY ATTORNEY

TRIAL ATTORNEY: ;

) (Signed) LEONARD A. CALCAGNO

“i

LEONARD A. CALCAGNO

ASSISTANT

CITY ATTORNEY

ORDER

| Let the defendant, DEGELOS BROS. GRAIN COR-

PORATION, show cause on the 29th day of Nov., 1963, at

.10:30 o’clock in the A.M., why a preliminary injunc-

‘tion should not issue as herein prayed for according to

Jaw.

New Orleans, Louisiana this 21st day of Nov., 1963.

(Signed) OLIVER P. CARRIERE

JUDGE :

Memo to Civil Sheriff:

Serve Defendant: a - Nov. 29, 1963

DEGELOS BROS. GRAIN CORPORATION

Through its Proper Agent Cont. 2 wks.

CE PRY MEE RET ETON TD A MENA GP TO Re TREY Hi SM ET TO nee

e ; AFFIDAVIT

STATE OF LOUISIANA

PARISH OF ORLEANS

BEFORE ME, the undersigned authority, personal-

ly came and appeared:

Mayor Victor H. Schiro,

who, after being duly sworn, deposed and said that he

is the Mayor of the City of New Orleans and that he

‘has authorized the preparation and filing of the fore-

going petition and suit, and

Leonard A.\Calcagno,

who, after being duly sworh, deposed and said that

he is an Assistant City Attorney for the City of New

Orleans; that he prepared and has read the above and

- foregoing petition and that the allegations thereof are

true and correct to the best of his\knowledge, informa-

tion-and belief. _———\——_—__—_——

(Signed) MAYOR VICTOR H. SCHIRO

: Mayor Victor\H. Schiro .

(Signed) LEONARD A. CALCAGNO

Leonard A..Calcagno

Sworn to and subscribed \

before me this 20th day of t

November 1963.

(Signed) (illegible) ‘

Notary Public ‘“

Pe sae

CIVIL DISTRICT COURT FOR THE

PARISH OF ORLEANS

‘STATE OF LOUISIANA

NO. 417-595 ‘DIVISION ““H”. | DOCKET 5

CITY OF NEW ORLEANS AND HEALTH

DEPARTMENT, CITY OF NEW ORLEANS »

versus

alt

DEGELOS BROS. GRAIN CORPORATION,

FILED Jan. 31, 1964 ~

@ 10:40 AM

(Signed) J. OHLSSON

DEPUTY CLERK

3 \eF

ANSWER

Now into Court comes Degelos Bros. Grain Corpora-

tion, defendant, appearing herein with full reservation

of all of the rights under the motions and exceptions

heretofore filed in these proceedings, and in answer to

the petition for injunction filed by plaintiffs, defend-

ant denies all and singular the allegations thereof, ex-

cept as same may be expressly hereinafter admitted.

Further sade a defendant avers:

The allegations of paragraphs I and III are admit-

IT. aie

The allegetions of paragraphs Il, IV, V, VI, VII,

- VITI, IX, X, XI, — XII are denied.

Further answering, defendant avers:

TIL

Defendant operates a modern and efficient ‘plant lo- |

cated at the foot of Napoleon Avenue near the Missis- —

‘sippi River, for the purpose of dehydrating brewers

grain~purchased’ from the three breweries operating

in the City of New Orleans, using clean, modern and

efficient equipment at all times.

IV.

For many years prior to the commencement of a,

fendant’s operations, a similar plant was-operated by .

New Orleans Grain and Feed Company in the down-

town area of New Orleans, using the same materials

and similar equipment; and defendant alleges on in-

formation and belief that no action whatever was tak-

en by plaintiffs to enjoin such operations. ._ 4

‘

Vv.

The area in which defe t’s operations are con-

ducted is zoned for industrial . and defendant’s op- ©

erations comply in every way with applicable laws

and ordinances. ' %

. health or to private individuals.

i *

The people living end rking in the. area in which

‘defendant’s plant is located are surrounded by indus-

trial and commercial activities of all kinds, includ-

ing riverfront movement of trains, ships, and trucks,

“all creating certain amounts of smoke, vapor, and

odor. More specifically, there are numerous plants

and factories in the area surrounding defendant’s .

‘plant, including some located on the West Bank of the ©

Mississippi River, from which smoke, vapor, and

odors reach the neighborhood of Napoleon Avenue and

the Mississippi River. ¢

a VII.

Defendant expressly denies that any smoke, vapor

or odor emitted from its plant is toxic, noxious, nause-

ous, or otherwise detrimental or damaging to public

- _ ‘VILL. ot

_ Despite the fact that defendant had and has no obli-

gation to eliminate’ all traces of odor, smoke, and

fumes, frgm its operations, defendant has engaged, at

~ considerable expense, experts, including engineers

and chemists, for the purpose of accommodating any

_itdividuals. having complaints with respect to the op-

eration of defendant’s plant; ‘considerable progress

has been made. in completely eliminating all such

traces; and defendant is advised by its experts that

with additional research, engineering, experiment arid.

experience, even further progress can be made; and

it is defendant’s intention to continue to work toward

. #

~ this end, despite the lack of any legal or other obliga-

tion to eliminate all traces of smoke, vapor, and odor.

IX.

New Orleans is an industrial community, seeking to

attract industry and commerce to this area, and de-

fendant contributes substantially to the economy of

this community by employing personnel; by making

substantial, payments to the three breweries operating

in New Orlearis; and by selling its products in thig

community and in interstate commerce.

Defendant has contracts with the three breweries

operating in the City of New Orleans which require

that defendant accept and dispose of the entire pro-

' duction of brewers grain on a continuing daily basis;

and if an injunction should be granted in these pro-

ceedings, a critical problem would immediately arise

with respect to the fulfillment of said contracts and

. the disposal of the brewers grain continually produced

in large quantities by said breweries; further, not only

would a serious financial loss ‘be sustained by the

breweries and by defendant, but a serious health prob-

lem would also result immediately.

XI.

Defendant has incurred substantial obligations with

local banks and other parties in connection with the

acquisition, installation and operation of its plant; and

the granting of the injunction sought herein would de-

stroy defendant’s business and would deprive defend-

. re ,

28 a

F . ‘

ant of its rights to equal protection and due process

under the Constitutions of the State of Louisiana and

the United States of America.

_ WHEREFORE, defendant prays that all of its rights .

under the exceptions and motions heretofore filed

herein may be reserved; thai this answer may, be

deemed: good and sufficient; and that after due pro-

ceedings, the petition filed herein may be dismissed at

plaintiffs’ cost. : ,

Defendant further prays for all general and equit-

able relief:

HENICAN, JAMES &

a ae CLEVELAND

(Signed) MURRAY F. CLEVELAND

Murray F. Cleveland

ATTORNEYS FOR

DEGELOS BROS. GRAIN

CORPORATION,

DEFENDANT

CERTIFICATE

I hereby certify that a copy of the above and fore-

going answer has been delivered to Mr. Leonard A.

Calcagno, trial attorney for plaintiffs. _

(Signed) MURRAY F. CLEVELAND

MURRAY F. CLEVELAND /

January 31, 1964

CIVIL DISTRICT COURT FOR THE

PARISH OF ORLEANS rm

STATEOF LOUISIANA Cs

'. CITY OF NEW ORLEANS, AND HEALTH

DEPARTMENT, CITY OF NEW ORLEANS

6 : No. 417-595

4 amas DIVISION “H”

DOCKET 5

DEGELOS BROS. GRAIN CORP.

| JUDGMENT

The rule for a preliminary writ of injunction herein’

filed on November 20, 1963, by the City of New Or-

leans and The Health Department, City of New Or-

leans, having been heretofore tried, argued and sub-

mitted to the Court for adjudication, and for the writ-

ten reasons Herein filed and made part of the record:

IT IS ORDERED, ADJUDGED AND DECREED that

_the said rule be made absolute, and accordingly, that.

a preliminary writ of injunction issue herein, prohib-

iting and enjoining the said DEGELOS BROS. GRAIN

CORPORATION, its officers, agents, and employees

and their successors, from using its dehydrating plant

in any manner which will create or cause to be creat-

ed, rancid, acrid odors which are obnoxious and nause-

ous to the citizens of the City of New Orleans.

IT IS FURTHER ORDERED, ADJUDGED AND DE-

CREED that the above preliminary writ of injunction

be held in abeyance for a period of forty-five (45) days

from date hereof. |

e ) | ae |

ae co

JUDGMENT READ, RENDERED AND SIGNED IN

OPEN COURT ON MAY 28, 1964.

(Signed) OLIVER P. CARRIERE

JUDGE

CIVIL DISTRICT COURT FOR THE

PARISH OF ORLEANS

STATE OF LOUISIANA

NO. 417, 595 DIVISION ‘‘H”’ DOCKET 5

CITY OF NEW ORLEANS AND HEALTH

DEPARTMENT, CITY OF NEW ORLEANS

VS.

ce! (~

DEGELOS BROS. GRAIN CORP.

REASONS FOR JUDGMENT

| This case presents a very Mea situation. It

might well be called ‘‘The case of the oe odor’’.

Some witnesses desgribe the odor as “disgusting,

sickening, obnoxious,’ awful, smells like burnt pop-

corn, burnt bread, burnt rice, burnt meal, burnt man-

ure, like old rags burning’’. Other witnesses state that

the odor ‘“‘has a chicken gut,smell’’, ‘‘smells like some-

thing dead around the house’’, ‘‘smellis like a sewer.”’

On the other hand some witnesses for the.defendant

’ testified that the above described odor is non-existent.

Some defense ‘witnesses state that “there is an odor,

—

Me ae

Reece hace insti ame

but it is one common to a river-front area, itisacom- —

/ pound odor that is not obnoxious or toxic’’. Other de-

fense witnessess state that ‘‘there is an odor and it

smells like roasted chestnu ”; “It is a very pleasant

odor, the kind you find in a theatre lobby, a pop-corn

odor.”

There is even a mystery as to whether the dehydrat-

ing plant emits a smoke. Some witnesses state that

the smoke ‘‘changes color, it is’ white, yellow, dark

brown, tan, grey’’. Other witnesses state that ‘“‘it is not

smoke, it is a white vapor or steam’”’. Mf

The Court visited the neighborhood and inspeeted

the plant with all the parties and counsel at 1:00 P.M.

Thursday, May 14, 1964.

Further, the Court visited the plant and inspected

the area and the neighborhood on the following dates

at the approximate times indicated:

, ‘1, Tuesday, May 12, 1964. . 5:45 A.M. to 6:15 AM.

2. Tuesday, May 12,1964. 7:20 A.M. to 7:45 A.M.

3. Tuesday, May 13; 1964. . 8:15P.M.to 8:48 P.M.

4. Wednesday, May 13, 1964. 6:00 A.M. to 6:20 A.M.

5. Wednesday, May 13, 1964. 5:30 P.M. to. 6:10 P.M.

6. Thursday, May 14, 1964. © 4:50 A.M. to 5:25 A.M.

7. Thursday, May 14, 1964. . 1:00 P.M. to’ 1:40 P.M.

8. Friday, May 15,1964... 5:15 A.M. to 5:50 A.M.

9. Saturday, May 16,1964... 2:45AM. to 3:15 A.M.

10. Saturday, May 16, 1964. _ 6:00 A.M. to 6:20 A.M.

11. Saturday, May 16, 1964" 10:15 A.M.to 1:30 P.M.

12. Sunday, May 17, 1964... 12:10 P.M. to 12:30 P.M.

Sunday, May 17, 1964.%. 10:15 P.M. o 10:25 P.M.

-. Monday, May 18, 1964. 5:25 A.M. to. 5:40 A.M.

15. Monday, May 18, 1964.... 6:15 P.M. to 6:40 P.M.

16. Tuesday, May 19, 1964... 4:45 A.M. to 5:25 A.M.

17. Tuesday, May 19, 1964... 5:45 P.M. to 6:35 P.M.

18. Tuesday, May 19, 1964... 8:50 P.M.to 9:10 P.M.

19. Wednesday, May 20, 1964. 5:55 A.M. to 6:15 A.M.

20. Wednesday, May 20, 1964.12:35 P.M. to 1:00 P.M.

21. Wednesday, May 20, 1964. 6:20 P.M. to 6:35 P.M.

- 22. Wednesday, May 20, 1964.10:25 P.M. to 10:40 P.M.

23. Thursday, May 21, 1964... 5:05 A.M. to 5:25 A.M.

24. Friday, May 22, 1964...... 4:25 A.M.to 4:50 A.M.

25. Friday, May.22 ,1964. ... 5:50 A.M.to 6:05AM.

26. Saturday, May 23, 1964. . §:10 A.M. to 6:45 A.M.

27. Saturday, May 23, 1964... 8:00 A.M. to 8:45 A.M.

28. Saturday, May 23, 1964. .10:40 A.M. to 11:55 A.M.

29. Saturday, May 23, 1964... 1:50 P.M. to 2:35 P.M.

30. Saturday, May 23, 1964... 5:50 P.M. to 6:00 P.M.

31. Sunday, May 24, 1964. ... 9:00 A.M. to 10:00 A.M.

LAW

“A trial Judge has a perfect right in a proper case

such as this to take into consideration his ocular ob-

servations made outside the courtroom of the locus

in quo or the thing involved in the case, not for the pur-

pose of-supplying new evidence, but with the hope of

determining where the evidence is conflicting, just

what testimony in the record is worthy of belief.’’

Russell v. Bartlett 139 So. (2d) 770. —

In action to enjoin es eat from operating its

‘business in such a manner as to constitute a nuisance,

¢ fs

admitting a recording of the various noises emanat-

ing from the defendant’s plant as heard in the living

room of plaintiff about 11:00 P.M. was not error over

_ the objecting that the recording of noises could have

been amplified by the plaintiffs. Ragusa v. American

Works 97'So. (2d) 683. In this case the Court said: ‘‘We

feel relatively certain that the trial Court did not err

in permitting the introduction of this evidence.”

3. 2

“_ Was not the duty nor the province of the Court

to undertake to point out exactly the steps appellant

should take to comply with the judgment. Appellant is

in a, position to determine this question.’’ Ellis v. Blan-

chard 45 So. (2d) 100.

4. | oh

Articles 668 and 669 of the Louisiana Civil Code.

Art. 668. Although one be not at liberty to

make any work by which his neighbor’s build-

ings may be damaged, yet every ohe has the

liberty of doing on his own ground: whatsoever

he pleases, although it should occasion some

inconvenience to his neighbor.

Thus he who is not Subject to any servitude

originating from a particular agreement in

that respect, may raise his house as high as

he pleases, although by such elevation he

should darken the lights of his neighbors’s

(neighbor’s) house, because this act occasions

only an inconvenience, but not a real damage.

4. sie, aks

Art. 669. If the works or materials for any

manufactory or other operation, cause an in-

convenience to those ,in- ‘the same -or in the

neighboring houses, by diffusing smoke or

nauseous smell, and there be no servitude

established by which they are regulated, their

sufferance must be determined by the rules

of the police, or the customs of the place.

5. 4

Article 667 of the Louisiana Civil Code.

Art. 667: ‘‘Although a proprietor may do

_with his estate whatever he pleases, still he

can not make any work on it, which may de-’

bates his neighbor of the liberty of enjoying

Ss own, or which may ” the cause of any

damage to him.”

—

Allen v. Albright 151 So. (2nd) 554.

(1) The law of nuisance in Louisiana is

based on common sense and reason. A per-

son has a right to use his property in any way

he sees fit so long as he does not violate any

positive law, but he can not abuse this priv-

ilege by unduly interfering with the rights of

his neighbor. . . .

A good general statement of the law is: _

“#** A lawful business cannot be abated as

a nuisance unless the business is operated in’

Such 4 way as to give rise to serious and ma-

terial discomfort and inconvenience to those -

living in close proximity thereto.” Galouye v.

" ~ A, R. Blossman, Ince. (La. App. 1 Cir., 1947),

32 So. 2d 90.

Talbot v. Stiles 189 So. 469

(3) In Cunningham vy. ‘Wilmington Ice

Mfg. Co. 2 W. W. Harr. 32 Del. 229, 121 A. 654,

it is said that ‘“‘A ‘nuisance’ is anything from

which results harm, inconvenience, or dam-

age, or which materially interferes with the

a enjoyment of rights or property.”’

_ Ryan v. Louisiona Soc. For Prevention of

‘Cruelty to Animals 62 So. (2d) 296. P

“In view of a plea made by defendant in its

supplemental answer that its buildings can

ie be altered, changed, and reconstructed in

such a manner as to eliminate disturbance to

plaintiffs, the trial judge granted the defend-

ant a delay of ninety days within which ‘to

make the alterations to the buildings.”’ |

FINDINGS OF FACT

THE ODOR .

-1. The Court finds as a fact that the Degelos Plant '

emits a rancid, acrid,“penetrating odor which is ob-

noxious, nauseous and is a nuisance. This is the odor

complained of by the residents of the neighborhood.

Webster’s Dictionary defines rancid and acrid as fol-

lows:

‘‘fRANCID - Having the peculiar tainted smell

of oily substances that have begun to

spoil”. .

‘‘ACRID - Sharp and harsh... irritating 544

bitterly oe to the feelings ae

meates a certain area or neighborhood.

3. When the certain atmospheric conditions are

present, the direction in which the wind is blowing will

determine which area or neighborhood will be per-

meated by the rancid, acrid odor. )

bh 4

4.° The rancid, acrid odor is invisible, it covers a |

certain area, at certain times, under certain atmos-

pheric conditions and may be present for several hours.

' §. The rancid, acrid odor that ennoys the residents |

is a nuisance.

z. When certain eeeehenie conditions are present oJ

this rancid, acrid odor is not controlled, by the pres- ’

——

x r

The rancid, acrid odor is produced by the de-

fendant, the Degelos Corporation and-is not a com-

pound odor produced by the accumulation of odors on

the river-front. - ig

7. ‘Phe odor produced by the apparatus operated by

Mr. Hanemann in the engine room of-the Civil Dis-

trict Court duplicated the rancid, acrid odor com-.

plained of by the residents of the neighborhood..

8. The rancid, acrid odor produced by tH® Degelos

plant is not toxic. Fenty eel

9. The rancid, acrid odor complained of by the resi-

dents othe neighborhood, is not ammonia, and it is

not caused by the cleaning of freight cars or by the

meat packing plant. Neither is it a result of unloading

fish meal or hides. Nor is it caused by the Celotex

‘ plant, the Johns Manville plant or the Oronite Chemical

plant. eres :

10. , The rancid, acrid odor was not present in the

area or neighborhood before January 2, 1963.

THE TESTIMQNY OF THE WITNESSES

11. The testimony of practically all of the witnesses -

can be reconciled. —

12, A person can ride in an auto along Tchoupitoulas

Street or in the area every day, at intervals during

the morning, at noon and night, with all the windows

down, and no air-conditioning, and never detect ‘the

. Tancid, acrid odor. Indeed a person can walk all around

in the neighborhood, at various intervals, and not de-

f As

Vv sy

tect the odor. (This*is one offthe facts which apparently

“a nature as was required tO propel the odor in that — -

makes this situation: so baffling: The answer, however,

is simple. The person making the check on the odor

simply is not on the scene at the time that the atmos-

pheric conditions are such as to cause the odor to be

present ‘and uncontrolled, by the present methods used

by the égelos sais : eee

; A erson can report for duty every day at the

office of the Public Commodity Warehouse on the

river-front, 150 feet from the Degelos’ Plant, ‘eat in

the: ‘Junchroorn, which is not air-conditioned, and: not

d¢gtect the rancid, acrid odor. (This is also easily ex-

lained. The atmospheric conditions were not of such

particular direction or area when the parties were

present. Further, STRANGE AS IT SEEMS, that, par-

ticular spot, wh ere thé lunch room is located, may

never be ‘‘visited” by, or be ‘subjected to’”’ the oder.

That does not mean or prove that the odor is non-.

existent, nor does \t prove that the odor does not per-

meate ‘certain area ighborhoods aléng Tchoup-

itoulas, Bordeaux, ‘Up erline, Valence, Marengo and

Lyons Streets, etc. for hours at a time, at 3:00 A.M.,

5:00 A.M., 6:30 A.M., 9:00 A.M., NOON, 6:15 P.M., etc.

on various; days. )

14. The Court was impressed with me testimony of

Mr. Sheldon J. Hanemann.

' THE COLOR OF THE VAPOR OR “SMOKE”

nf ;

15. The vipor or steam emitted from: the smoke

‘stack, presents an illusion. -

«*@

i ht eta te

39 GP *

16. The vapor takes on a hue that is dependent upon

atmospheri@ ¢onditions and the background. This ex-

plains why witnesses testified that the ‘“‘smoke’”’ was

“‘white’’, “yellow’’, and ‘‘dark brown’’, ‘“‘tan’’ and.

“‘grey’’.

2 ' 8

17. If the humidity is heavy you can see the vapors.

18. The ‘smoke’ under certain atmospheric condi-

tions billows out of the smoke stack.

19. The pictures numbered City No. 9, City No. 10,

City No. 14, and City 19 through 24 correctly depicts

the vapors (‘‘smoke’’) emitted from the smoke stack.

(Certain atmospheric Conditions must be present for

the vapor ‘“‘smoke”’ to billow out of the stack as shown

by the saa Yoiaee

THE OPERATION-OF THE DEHYDRATING PLANT

OF DEGELOS BROS. GRAIN CQRPORATION * |

tions on January 2, 1963.

20. The Degélos "a Plant ‘started opera-.

21. ‘There has been no change in the method of Op- ..

eration of the Degelos plant over a period of the past

3 weeks (May 4, 1964-May 24, 1964) with respect to

temperature controls or production or otherwise.

22° No change was made in the* operation of the

Degelos plant due to the Court’s visit on ‘Thursday,

May 14, 1964.

23. The 500-900 degree heated air used to ‘dehy-

drate the Brewer’s spent grain does not burn or scorch

_ “

the grain. In the process of dehydration, the Brewer's

mash emits the rancid, acrid odor, even though the

\ spent grain is not burnt or scorched.

24. The average temperature.of the exhaust vapor

varies between 150-200 degrees.

25. The dehydrated grain retains from 10-14 per=>

cent moisture.

26. Under the terms of the contract between the.

Breweries and the Degelos Corporation, the Corpora-

tion must accept the. Brewer’s spent grain if, as and

when the Breweries process the brews.

27.” The spent grain must be processed within 14 to

<s or it will'sour andspoil. . 7

28. The Breweries itihbieitnis the schedule of op-

erations of the Degelos plant.

29. The Degelos Plant has received and processed

every brew (spent grain) that the Breweries have

dropped since the day the plant started operations.

30. On no occasion has the Degelos Plant dumped,

stored or otherwise diverted the spent grain produced

by ‘the Breweries and woclanete to their dehydrating

plant.

31. There has been no ‘burnt _ at seal Degelos

plant since the two fires. |

(The first in April 1963 and the second in May 1963.)

‘4

“?

ccitienierieienepaemeaiiena tT

32. The Degelos Plant is modern, clean and effi- —

ciently operated. °

33. The Defendant has acted in good faith and has

cooperated with all parties in an effort to solve the

problem. .

34. The defendant has an order with the Buffalo

Forge Co. of Buffalo, N.Y. for a #36 Design Gas Absorb-

er, Standard Steel Construction, which may solve the

problem. (See D-18)

35. The Equipment described as a #36: Design Gas -

Absorber is due in New Orleans on or about June 5,

1964. It will take approximately two weeks to install

the machine. ; 2

36. The defendant has spent or committed almost

$30,000.00 in attempts, to remove odors rising from its

smokestack. ~ | |

37. The amount of moisture removed from the.

Brewer’s spent grain will determine the volume and

the intensity of the rancid Odor. .

38. The humidity is a factor which determines

when. the present methods, used by the Degelos Plant,

are inadequate to control the rancid odor.

OPINION . -

-The Degelos Plant emits a rancid, acrid odor which

is obnoxious, nauseous and a nuisance. ,

When certain atmospheric conditions are present

the “rancid odor is not controlled by the present methods

used by the Degelos Plant. The direction in which the

wind is blowing will determine which area or neighbor-

hood will be permeated by the.odor and will be the

recipient of a serious and material discomfort and in-

convenience. : .

The plaintiff is.entitled to have the nuisance abated.

However, the defendant is in good faith and has on or-

der, with the Buffalo Forge Company, certain equip-

ment which is due to arrive in New Orleans on June

5, 1964, and whith in all probability will solve the

problem.

Law is common sense. Therefore, considering all the

facts and circumstances of this case, the Court. will

order that the‘enforcement of the preliminary injunc-

tidn be held in abeyance for a period of 45 days.

There will be judgment accordingly.

New Orleans, Louisiana. .

May 28, 1964. | .

(Signed) OLIVER P. CARRIERE

JUDGE

RO Br: 43

APPENDIX “B”

_ COURT OF APPEAL,

FOURTH CIRCUIT ¢

STATE OF LOUISIANA |

CITY OF NEW ORLEANS AND HEALTH

DEPARTMENT, CITY OF NEW ORLEANS

VS. NO. 1728

_ DEGELOS BROS. GRAIN CORPORATION

APPEAL FROM THE CIVIL DISTRICT COURT FOR

THE PARISH OF ORLEANS, NO. 417-595, DIVISION

“H’? HONORABLE OLIVER P. CARRIERE, JUDGE

LUTHER E. HALL

JUDGE

(Court composed of J udges Godfrey Z. Regan, L. Julian

Samuel and Luther E. Hall)

~ ALVIN J. LISKA, LEONARD A. CALCAGNO, J. B.

KIEFER for plaintiff-appellees -

BALDWIN, HASPEL, MOLONEY, RAINOLD & MEY-

ER; MILLING, SAAL, SAUNDERS, BENSON &

WOODWARD; PHELPS, DUNBAR, MARKS, CLAV-

ERIE & SIMS; and WILLIAM A. GLENNON, JR., for

intervenors-appellees , ;

HENICAN, JAMES & CLEVELAND, MURRAY F.

CLEVELAND or defendant-appellant

AFFIRMED.

- The City of New Orleans and The Health Department

_ of thé City of New Orleans filed this suit seeking to en-

join Degelos Bros. Grain Corporation from using its

dehydrating plant in any manner ‘‘which will create

or cause to be created odors which are obnoxious, vile,

stinking, irritating and/or nauseous to the citizens of

New Orleans.’’ Four interventions were fited, one sup-

porting plaintiffs’ side and three supporting the side

of defendant. Following an extensive hearing on the

rule nisi the Trial Court granted a preliminary in-

junction in plaintiffs’ favor prohibiting,;and enjoining

« defendant ‘‘from using its dehydrating plant in any

manner which will create or. cause to be created,

rancid, acrid-odors which are obnoxious and nauseous

to the.citizens of the City of New Orleans,’’ but held its

writ in abeyance for a periad of 45 days from theidate

of its judgment, which was rendered on May 28, 1964.

All four interveniions were dismissed by the Court.

On June 9, 1964 the Trial Court granted defendant a

Suspensive appeal from its judgment and the matter

is before us thereon. None of the intervenors appealed.

«. The defendant owns and operates” a dehydrating

plant at the foot of Napoleon Avenue, near the Missis-.

sippi River, in the general area of the 4700 block of

Tchoupitoulas Street in the City of New Orleans. The

plant is used exclusively, for dehydrating spent brew-

er’s mash which is the residue or by-product of the

brewing of beer, and consists of spent barley, rice and

other grains. Defendant has contracts with all of the

breweries in the city to purchase all of their spent

mash. After dehydration defendant sells it for cattle

feed.

Essentially the dehydration process used by defend-

ant consists of subjecting the wet mash received from

the breweries to a stream of air which has been pre-

heated to temperatures varying from 500 to 900 degrees

Fahrenheit. During the process the heated air becomes

-Much reduced in temperature and is exhausted

through a smoke stack. It is the odor emanating from

the, exhaust which is the cause of complaint in this

suit.

_ Defendant began its plant operations on or about

January 2, 1963. In March or April 1963 the city au-

thorities began to receive complaints about the odors

from the plant from ople living in its vicinity. The

Complaints continugd and became so numerous that

the city filed this suit on N ovember 20, 1963.

’ peer

The issues in the case are predominantly factual.

Does the plant emit an odor? If so, is the odor ob-

noxious and nausea an extent to make it a public

nuisance?

¢ Defendant admits that the plant emits an odor un-

der certain conditions. As a matter of fact defendant

has employed engineerdy and has gone to considerable -

expense in an effort to find some means or method of

eliminating the odor. When the trial ended dicho

had a gas absorber under. order from the Buffal Forge

Co. of Buffalo, N. Y. which it hoped. might solve the

problem. This absorber was not due for delivery until .

O-

tan

46 ! *

sometimé¢in July 1964“and is the reason why the Trial

Court held its injunction in abeyance for 45 days. How-

ever instead of waiting to see what result the gas ab-

sorber would accomplish defendant applied for a

suspenkive appeal.

Although defendant admits that the plant emits an

odor, it contends that the odor is not unpleasant and

occurs only a small percentage of the time, and con-

tends that its efforts to eliminate the odor were under-

taken solely to promote cordial relations with the

public. )

The record consists of the testimony of over forty

witnesses and no good purpose would be served by a

detailed recital of their testimony. Some of:the wit-

nesses described Mhe odor as ‘‘disgusting,”’ ‘‘sicken-

ing,’’ ‘‘obnoxious,”’ ‘‘awful,’’ ‘‘smells like burnt pop-

corn,” ‘‘burnt bread,’’ ‘“‘burnt rice,’’ ‘“‘burnt manure,”’’

“like old rags burning.’’ Other witnesses stated the

odor has a ‘“‘chicken-gut smell,’’ ‘‘smells like some-

thing dead around the house,”’ ‘‘smells like a sewer.”’

On the other hand some of)the defense witnesses

testified the odor is non-exisfent. Others state that

‘‘there is an odor but it is one common to the river-

front area, it is a compound odor that is not obnoxious

or toxic.” ‘Still other defense witnesses state that

“‘there is an odor and it smells like roasted chestnuts;”’

“it is a very pleasant odor, the kind you find in a

_ theatre lobby, a-pop-corn odor.”’

During the progress of the trial the Trial Judge

visited the plant and inspected the area and the neigh-

borhood on 31 different occasions within 13 days.

After a lengthy “Finding of Fact’’ in which he re-

solved all factual issues in detail the Trial Judge reach-

ed the conclusion that defendant’s plant “emits a

rancid, acrid, penetrating odor which is obnoxious,

nauseous and a nuisance.’ He further found that the

rancid, acrid odor is produced by the defendant’s plant

and is not a compound odor produced by the accumula-

tion of odors on the riverfront, and that the odor was noi

present prior to the beginning of operations by defend-

ant. He also found that the odor permeates the neigh-

borhood under certain atmospheric conditions and

may be present for several hours at a time and results

in serious and material discomfort and inconvenience

to the inhabitants of a considerable area.

We have carefully studied the record and we find no

manifest error in the Trial Court’s findings of fact and

his conclusions therefrom. ‘

Most of defendant-ap ellant’s “Specification of Er-

rors’ are concerned with factual issues which were

resolved against it. However, in addition thereto de-

fendant-appellant contends that the Trial Court erred

in granting an injunction where, as it contends, there

is no evidence of any present or threatened irreparable

injury, loss or damage and where there exists an ad-

equate remedy at law available’ in a suit for damages

by any individual in a position to prove injury. The

_ Short answer to that contention is that the neighbors

' are being subjected to serious discomfort and incon-

venience, as found by the Trial Court, and since the

odor complainéd of is continuing and recurring any

remedy afforded at law, would be inadequate. See

McGee v. Yazoo & M.V.R. Co., 200 La. 121, 19 So.2d 21,

23.

Defendant-appellant’s contention that the issuance of

an injunction closing its plant would unfairly cause’

defendant tremendous financial loss and would deprive

it of its right to equal protection and due process of

law is without merit. The city is not seeking to close

.defendant’s plant and the injunction as issued does not

do so. It simply abates a nuisance which emanates

from the present operation of the plant and it is con-

ceded that there are methods whereby the odor may.be

eliminated by defendant. &

Defendant-appellant also contends that virtually

every witness for plaintiffs was unusually susceptible

. to odors of any kind because of asthma, bronchitis,

shortness of breath associated with heart trouble, or

ulcerated stomach. While the majority of plaintiffs’

witnesses were so afflicted (and it is quite natural that

they should complain the most) there were other plain-

tiff witnesses who were not so afflicted who testified to

the nauseous character of the odor. In the same con- -

nection defendant-appellant complains that the Trial

Judge based his judgment on his own personal opinion

about the odor without being subject to ¢ross-examina-

tion to determine whether he was-unusually susceptible

to odors. The Trial Judge was confronted with conflict-

ing evidence and he had a perfect right to visit the

area, not for the purpose of supplying new evidence,

but for the purpose of evaluating the testimony given’ by

the witnesses. See Russell v. Bartlett, 139 So.2d 770;

_seé also McGee v. Yazoo & M.V.R. ‘Co. supra at p. oT

We feel sure that the Trial Court would not have under-

_ taken his visits to the area had he been for any reason

unusually susceptible to odors.

Defendant-appellant also contends that a ten year

record of winds recorded at Moisant Airport shows that

winds blowing out of the south, southeast and south-

west (from which directions only the odor comes to, the

complaining neighbors) occur only 5% of the time or

approximately 114 days per month. If we use the same

basic data, regardless of the fact that it was recorded

‘some miles from the area in question, we can reach

other - mathematical conclusions, such as that the

odor would descend upon the neighborhood for over

_ an hour each day in the month, or over two hours 18

days out of the month, ete. ‘ \

& \

We conclude that the only serious issues involved are

issues of fact and we find no manifest error in the

judgment appealed from. ™

For the foregoing reasons the judgment appealed

from is affirmed, costs of both Courts to be borne by

defendant-appellant. | 7

AFFIRMED.

_ 50

APPENDIX “C”

SUPREME COURT OF LOUISIANA ~

f New Orleans, 70112 . ?

ae ’

Septentbeér 30, 1965

City of New Orleans and

Health Department, City of New Orleans

Vv. 3

No. 47,860:

Degelos Bros. Grain Corporation

In re: Degelos Bros. Grain Corporation applying for

certiorari, or writ of review, to the Court of Appeal,

Fourth Circuit, Parish of Orleans 3

Writ refused. = § 7

No error of law under the facts found by the Court of

pr ere P

/s/FWH

/s/JBF

/s/JBH

/s/EHMcC

- /s/WBH

/s/JIWS

/s/FWS

A TRUE COPY a ae

Clerk’s Office ;

‘Supreme Court of Louisiana

New Orleans, September 30, 1965

(Signed) HAROLD A. MAISE, JR.

Deputy Clerk

Office-Supreme Court, U.S, i

FILED :

‘ ss a a ee; MAR 14. 1965

° re ;

initiaited

Supreme Court of the United States

| “OCTOBER TERM, 1965

ve 1050

DEGELOS BROS. GRAIN CORPORATION,

Petitioner,

CITY OF NEW ORLEANS AND HEALTH

DEPARTMENT CITY OF NEW ORLEANS,

Respondent.

BRIEF OF CITY OF NEW ORLEANS AND HEALTH

DEPARTMENT CITY OF NEW ORLEANS IN OP-

POSITION TO THE ISSUANCE OF A WRIT OF

CERTIORARI TO THE SUPREME COURT =

LOUISIANA.

ALVIN J. LISKA,

City Attorney,

LOUIS P. TRENT,

Assistant City Attorney,

Attorneys for Respondents,

Room 2W23—City Hall,

New Orleans, Louisiana.

HAUSER-AMERICAN, “LEGAL PRINTERS", 441 GRAVIER STREET, NEW ORLEANS, LA.

a RAE MOOD Tk Sona eee he

| SUBJECT INDEX. |

US. 486, 36 S. Ct. 206, 60 L. Ed. 396.

Putas re PAGE

OPINIONS OF THE COURTS BELOW 4

JURISDICTION :__.— 1

‘THE ORDINANCE ge “9

QUESTIONS PRESENTED FOR REVIEW 2

STATEMENT OF THE CASE 3

| ARGUMENT IN OPPOSITION TO THE GRANT- ’

ING OF THE WRIT 4

CONCLUSION 5

_ AUTHORITIES CITED *

| Cases ;

Hannibal & ‘St. J.R. Co. v. Husen, 95 US. 465, 471,

24 L. Ed. 527, 530 m3)

Miller, et al. v. Schoene, 276: ieee 272, 48.8. Ct. 246, |

i 72 L. Ed. 568 g —_ 4

‘ Missouri K & T.R. Co. v. Haber, 169 U.S. 613, 628,

) 5

saalinbediik ‘ike v. City of Des Moines, 239

+ .

- »

CSA ER RAAT Re ietears ‘

: Supreme Ci C ie United State |

TERM, 1965

- No.

. oO

DEGELOS BROS. GRAIN CORPORATION,

| Petitioner,

_Dersus *

CITY OF NEW ORLEANS AND HEALTH

DEPARTMENT CITY OF NEW ORLEANS,

Respondent.

BRIEF OF CITY OF NEW ORLEANS AND HEALTH

DEPARTMENT CITY OF NEW ORLEANS IN OP-

’ POSITION TO THE ISSUANCE OF A WRIT OF

- CERTIORARI TO THE. SUPREME ‘COURT OF

LOUISIANA. :

The City of New Orleans, and, the Health Depart-

ment of the City of New Orleans, herewith submits its

brief in opposition to the issuance of ‘& writ of certiorari

to the Supreme Court of Louisiana.

\ OPINIONS OF THE COURTS BELOW

The opinions of the Courts below are correct as. [pre-

sented by the petitioner.

\ JURISDICT. ION

a. The statement as to jurisdiction, presented by pe-

titioner in paragraph (d) is in error, as the Ordinafice of

the City of New Orleans No. 828 M.C.S., (The Code of the

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.