APPEAL from the Circuit Court of St. Clair County; the Hon.
D.W. COSTELLO, Judge, presiding.
MR. PRESIDING JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
This is an appeal by the defendants, Leonard Abbott and Beverly Abbott, from an order for a permanent injunction enjoining them from operating a dog kennel at their residence.
In August 1973 the plaintiffs filed a complaint for injunctive relief alleging that a foul and sickening odor and the sound of dogs howling and barking permeates the air, that the odor and the noise prevents the plaintiffs and other people in the community from enjoying the reasonable use of their homes and yards, that the plaintiffs will suffer irreparable injury unless injunctive relief is granted and that the defendants' conduct constitutes a public nuisance as defined by statute (Ill. Rev. Stat. 1973, ch. 100 1/2, par. 26(8)). Subsection (8) provides that it is a public nuisance:
"To erect, continue or use any building or other place for the exercise of any trade, employment or manufacture, which, by occasioning noxious exhalations, offensive smells or otherwise, is offensive or dangerous to the health of individuals, or of the public."
The court found that the operation of the dog kennel did constitute a nuisance both because of the noise and because of the odor which emanated from the kennel.
• 1 Defendants maintain that the trial court erred in overruling the defendants' motion to dismiss because there was an adequate remedy at law. At the time the petition for injunction was set for hearing five criminal charges were pending against the same defendants for alleged violations of the above statute. Defendants argue that because these cases are pending and because there is a criminal statute affording a remedy to the plaintiffs, injunction should not have been granted. We do not agree.
Cases cited by the defendants do not support their view that injunction was not proper. In City of Chicago v. Fritz, 36 Ill. App.2d 457, 184 N.E.2d 713, the court held injunction proper to abate the operation of a dump within 1 mile of a municipality. The same statute was involved. In the course of its opinion the court remarked that it had long been recognized that a court of equity has jurisdiction when the enforcement of a criminal statute is incidental to the general relief sought. The court said: "Since the facts presented here justify equitable intervention, an injunction may issue even though the conduct objected to is also a crime * * *."
• 2 In Illinois Power Co. v. Latham, 3 Ill. App.3d 1000, 279 N.E.2d 133, a case decided by this court, we reversed a trial court decree holding that injunction would not lie. The trial judge had said:
"* * * [T]his Court cannot restrain criminal acts and is not constituted to enforce the criminal laws."
"Although a court of equity is reluctant to issue an injunction to intervene in matters purely criminal, it will do so in a proper case. * * * `* * * Where equity would otherwise have jurisdiction to enjoin certain conduct, the fact that the legislature has made such conduct a crime does not affect the jurisdiction to enjoin. * * * The remedy at law * * * is not always efficacious and adequate * * *.'" 3 Ill. App.3d 1000, 1001-1002.
In People v. Hart, 154 Ill. App. 237, a case also cited by the defendants, injunctive relief was sought against Hart and 87 other defendants to enjoin their obstructing the streets in front of the courthouse in Peoria, Illinois, with their hacks, cabs, drays and wagons. It was alleged that this was in violation of section 221 of the Criminal Code as it existed in 1910. In Hart the court simply did not find facts supporting an injunction. It said:
"This allegation [of the plaintiffs] is simply the allegation of a conclusion, and does not allege any facts which show any inconvenience or detriment either to the public or to the owners of adjacent property.
There is neither any allegation as to the width of the streets or that there is not ample room and space remaining for any person desiring to use said ...