On Rehearing.
[En Banc. March 24, 1921.]
Mount, J.After the departmental decision was filed in this case, a petition for a rehearing En Banc was granted and the case was reargued. The judgment appealed from restrained the appellants from conducting .or operating their slaughter house and fertilizing plant and abating the plant as a nuisance by reason of noxious odors arising therefrom. A majority -of the court upon this rehearing are of the opinion that the order appealed from goes farther than neces*369sary and that the trial court should have given the appellants an opportunity to avoid the noxious odors, as was done in the case of Wilcox v. Henry, 35 Wash. 591, 77 Pac. 1055.
Upon the trial of the case, Dr. Sparling, the county health officer for King county, was called as a witness for the respondent. After testifying that the odor surrounding the place came from the rendering fats of the fertilizing plant, then in answer to the question, “Do you know of any way whereby that could be eliminated?” answered as follows:
“Well, there are two methods that are used to eliminate this smell, and one of them is by having the odor, when it is dumped, pass through condensers, condensers which are made for this purpose, and in that way the odor is condensed there and liquified and passes off with the other drainage, and any fat that is left in there, in the condenser, is taken out of the condenser and sold. Another way is by a tall, superheated flue. After the odor passes up this flue it passes into a jet of burning oil, and in this way the odor, which is more or less gases, are all carbonized and practically all the odor is eliminated. Q. Are there appliances of that kind manufactured, doctor, do you know, especially for this purpose? A. Yes.”
So it is apparent that there is evidence in the record tending to show that the noxious odors may be eliminated. It follows that, before an order may issue destroying the plant of appellants, a reasonable time and opportunity should be given to the appellants to obviate the noxious odors.
A majority of the court is further of the opinion that the complaint, as well as the evidence, shows that the odors arose from the fertilizing plant and not from the slaughter house, and that the plant is not located in a residence section but is in a surburban district where the nearest dwelling is three hundred yards *370away and the land surrounding is platted into five acre garden tracts.
For these reasons, the judgment appealed from is reversed and the cause remanded with directions to the lower court to grant the appellants ninety days time within which to avoid the noxious odor, the appellants to recover their costs of this appeal.
Parker, O. J., Main, Holcomb, Tolman, Mackintosh, Bbidges, and Mitchell, JJ., concur.