Opinion
April 26, 1965 —
June 1, 1965.
APPEAL from a judgment of the county court of Walworth county: MARK J. FARNUM, County Judge of Rock county, Presiding. Modified and, as modified, affirmed.
For the appellants there was a brief by Arnold, Arnold Thorson of Elkhorn, and oral argument by Robert W. Arnold.
For the respondents the cause was submitted on the brief of Richardson Hammett and R. G. Richardson, Jr., all of Delavan.
This litigation concerns an asphalt plant which is alleged to be a nuisance. Willy Bie and Betty Bie, whose house is about 900 feet away, brought suit to abate the operation of the plant operated by the defendants, B. R. Amon Sons. The trial court rendered judgment in favor of the plaintiffs by perpetually enjoining the operation of the hot-asphalt plant, by restraining the driving of trucks into the gravel pit (the source of the gravel component of the asphalt mix), and by enjoining the defendant, John Ingersoll, owner and the lessor, from permitting the defendants, B. R. Amon Sons, from using the property.
The gravel pit was in existence and occasionally operated at and prior to the Bies' purchase of their home in 1951. However, operations as an asphalt plant did not commence until 1960. At the time that the plant commenced operations, the land on which it was located was later zoned as "residential," but the area was rezoned as "industrial" for the specific purpose of accommodating the asphalt-plant operations.
Mrs. Bie and other residents of the vicinity testified that the operation of the plant caused a noxious odor to spread over the area. Some witnesses also testified that the odor made them sick and nauseated. One of the residents testified that she could not stay outside when the wind carried the odor in the direction of her property. Some residents of the area also complained of the dust that blew over and into their homes. From 30 to 35 additional witnesses were present in the courtroom ready to testify to the "noxious and annoying nature of the operation," but the trial court held that the testimony would be cumulative and repetitious.
The defendant presented witnesses who testified that the dust and smell, if any, was not offensive.
Richard Amon, one of the partners, described the operation of the plant as follows: Crushed gravel, taken from the pit, is fed into a rotating machine, which drives out the moisture. The drying is caused by heat from a natural-gas flame. Air, laden with dust, passes through six cones, which filter out dust, and then is drawn into a chamber called the wet collector. Water sprays out of 40 nozzles in the chamber, which wets the dust particles, causing them to fall and run out the bottom of the machine. The dry gravel is then mixed with oil to make the final product — asphalt.
The trial court, in a comprehensive review of the testimony, found that the witnesses for the plaintiffs were persons of "ordinary, normal or average sensibilities." The court further concluded that the witnesses for the plaintiffs were more credible than those for the defense.
The trial court found that the actions of the defendants resulted in the dissemination of smoke and odors that substantially interfered with the comfort of the plaintiffs and injured them in the use of their property, and that such actions constituted a nuisance. Accordingly, the court ordered that the defendants be enjoined from the operation of the plant in such a manner as to cause the nuisance complained of. The defendants were also enjoined from operating their trucks in a manner that results in excessive dust.
Both defendants appealed from the whole judgment.
The only question raised on this appeal is whether the trial court's findings, that the asphalt-plant's operation and the trucking in connection with it constituted a nuisance, is contrary to the great weight and clear preponderance of the evidence. Colson v. Salzman (1956), 272 Wis. 397, 401, 75 N.W.2d 421. The activity complained of must create more than an inconvenience, and must be offensive to the person of ordinary and normal sensibilities. The result is not to be measured by its effect upon those of extreme sensibilities.
Schneider v. Fromm Laboratories, Inc. (1952), 262 Wis. 21, 25, 53 N.W.2d 737. See also Prosser, Law of Torts (2d ed.) p. 395, sec. 70, which states that a private nuisance requires a substantial interference with the interest involved.
Cunningham v. Miller (1922), 178 Wis. 22, 29, 189 N.W. 531.
Ibid.
The following finding by the trial court is in accord with the above tests for determining whether or not certain activity is a nuisance:
"That the smoke given off from the hot mix plant is a nuisance to the plaintiffs herein, in that it carries onto the property of the plaintiffs dirt, dust, and other unpleasant particles, and that it contains an odor of a noxious nature resembling that of tar and asphalt, and that the dirt and odor referred to substantially interfere with the comfort and enjoyment of the plaintiffs in the use of their property, and injures the use of their property;
"That the operation of trucks to and from the pit upon the roadway constructed therefor is a nuisance in that it creates excessive dust and dirt which is carried upon the property of the plaintiffs, and that it substantially interferes with the comfort and enjoyment of the plaintiffs in the use of their property, and injures the use of their property."
What we said in holding a tanning business a nuisance is applicable here:
Pennoyer v. Allen (1883), 56 Wis. 502, 512, 14 N.W. 609.
"A business necessarily contaminating the atmosphere to the extent indicated should be located where it will not necessarily deprive others of the enjoyment of their property, or lessen their comfort while occupying the same."
The appellants contend that findings are contrary to the great weight and clear preponderance of the evidence because the zoning authority has classified the property occupied by the asphalt plant as industrial. There are those cases that hold that if the local lawmakers have acted through a zoning ordinance, a court cannot thereafter hold a conforming use to be a nuisance. Other jurisdictions reason that a zoning ordinance and a use permitted by it does not give the property owner immunity from the consequences of maintaining a nuisance. We conclude that though an industrial use is permitted by the ordinance, the property must be used in such way that it will not deprive others of the use and enjoyment of their property. The operation of the asphalt plant, within the purview of the zoning ordinance, is lawful, but as we said in Pennoyer v. Allen, supra, at page 512:
Robinson Brick Co. v. Luthi (1946), 115 Colo. 106, 111, 169 P.2d 171, 166 A.L.R. 655.
". . . such interruption [of enjoyment] and destruction [of comfort] is an invasion of private rights, and to that extent unlawful. It is not so much the manner of doing as the proximity . . . to the adjacent occupant which causes the annoyance."
In Dolata v. Berthelet Fuel Supply Co. (1949), 254 Wis. 194, 36 N.W.2d 97, we held that a coal yard constituted a nuisance as to neighboring residential properties even though the yard itself is located on the fringe of an industrial-business district. Professor Jacob Beuscher of the Wisconsin Law School discusses that problem in an extensive law review article. We agree with the cases discussed there that hold that the zoning classification is not the controlling factor, though it is, of course, entitled to some weight. It is rather "the peculiar nature and the location of the business, not the fact that it is a business, that constitutes the private nuisance and ground for equitable relief."
Beuscher and Morrison, Judicial Zoning Through Recent Nuisance Cases, 1955 Wisconsin Law Review, 440.
Scallet v. Stock (1952), 363 Mo. 721, 727, 253 S.W.2d 143.
The appellants argue that if this court agrees with the trial court in finding a nuisance, that the judgment nevertheless must be modified because it is so broad in scope that all further operation of the plant is prohibited. The appellants contend that the release of "one minute particle" of dust would be violative of the order. We do not find the terms of the judgment to be that broad. The trial court abated the plant operation only to the extent that it constituted a nuisance. If the asphalt plant can be operated in a way that odors and dust are not present to such a degree as to constitute a nuisance, then the order does not prohibit the operation of the plant.
The appellants also contend that that part of the judgment which refers to B. R. Amon Sons as the licensee should be reversed. The record shows that the defendant, B. R. Amon Sons, is in fact a lessee. Therefore, the judgment should be modified to state that Ingersoll should be restrained from permitting his land to be used by a licensee or lessee in such a way as to cause the nuisance restrained by the judgment.
By the Court. — The judgment is modified to provide that the defendant, John Ingersoll, be perpetually enjoined from permitting his land to be used by a licensee or lessee in such a way as to cause the nuisance herein restrained by the judgment and, as so modified, affirmed.