Kate Gintling brought an action in the Summit Common Pleas alleging that she was the owner of a farm through which ran a living stream, that above her for four years last past the Ohio Stock Pood Company operated a hog farm and dumped refuse into the stream which polluted it and caused noxious and unhealthful odors, all to her damage.

The company denied Gintling’s allegations and a trial resulted in a verdict for Gintling and error is prosecuted here, four errors being complained of to wit. (1) That she did not state a cause of action, (2) that the court should have directed a verdict, (3) that the verdict was contrary to the weight of the evidence, (4) that the court erred in its charge.

The Court of Appeals held:

1. It is an elementary principle of law that an upper proprietor of land abutting upon a natural stream of water cannot by artificial means pollute said stream to- the injury of a lower riparian owner, without being liable in damages therefor, and it does not make any difference whether the pollution is made directly by the state or a subordinate municipal body or by a private corporation under a contract made with such municipality.

2. Riparian rights are property within the purview of Sec. 19 of the bill of rights, of which the owner cannot be deprived without just compensation, though taken for, or subjected to a public use'. Any actual and material interference with such rights, which causes special and substantial injury to the owner, is a taking of his property. Mansfield v. Balliett, 65 OS. 451.

3. We are therefore satisfied that Gintling does allege a complete cause of action against the Company, which if established by a preponderance of competent evidence, entitled her to a verdict and judgment against the Company.

4. Upon the second ground of error, “the courts of this state, in a proper case, have the power to take the evidence given by the plaintiff from the jury, and order a peremptory nonsuit. Such a motion involves an admission of all the facts which the evidence in any degree tends to prove, and presents only a question of law, whether each fact, in-dispensible to the right of action,' and put in issue by the pleadings, has been supported by some evidence. If it has, the motion must be denied; as no finding of facts by the court, or weighing of the evidence is permitted.” Ellis & Morton v. Ohio Life Ins. Co. 4 Abs. 628.

5. As Gintling introduced evidence to support all the allegations of her petition, if the court had directed a verdict for the Company, it would have usurped the functions of the jury and committed an error prejudicial to Gint-ling.

6. As to the third ground of error we think that there is sufficient evidence to support the finding of the jury. “A gas factory may constitute a nuisance as to a dwelling owing to noise and smoke, though no damage to the dwelling house or herbage on his land results nor to the rental or saleable value of the property.” 106 Pac. 531.

7. The court gave, before argument, Gint-ling’s requests as follows in part: “If you find from the evidence that the defendant at the time or times mentioned in this petition, has, by the operation of its hog farm - - - occasioned noxious-smells-the operation of its farm in that manner is negligent and unlawful, and entitles plaintiff to a verdict. It is the duty of the defendant to so operate its business as not to corrupt or render unwholesome or impure, a water course, and if this was done, they were guilty of negligence, etc.”

8. The court also gave tjie Company’s request: “the disposal of garbage from a municipality by the operation of a hog farm or pig*264gery is a lawful business and not a nuisance per se.”

9. The Company claims that its acts in the operation of its farm were authorized by law, inasmuch as it had a contract with the City of Akron to dispose of its garbage.

10. This fact was not specifically pleaded but the parties agreed to the stipulation supra in the bill of exceptions; neither did the company state that their farm was run in a skillful manner.

11. Both requests, having the above facts (7) in mind, seem to be in harmony and Gint-ling is entitled to recover because one does not have to prove negligence in cases of this 'kind.

Judgment affirmed.