266 Cal.App.2d 269, 9084, Rynsburger v. Dairymen's Fertilizer Co-op., Inc.

Docket Nº:9084
Citation:266 Cal.App.2d 269, 72 Cal.Rptr. 102
Opinion Judge:[10] Kerrigan
Party Name:Rynsburger v. Dairymen's Fertilizer Co-op., Inc.
Attorney:[7] Dannemeyer & Tuohey, Conrad G. Tuohey and William E. Dannemeyer for Plaintiffs and Appellants. [8] Richards, Watson & Hemmerling and Glenn R. Watson for Defendant and Respondent.
Case Date:September 30, 1968
Court:California Court of Appeals
 
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Page 269

266 Cal.App.2d 269

72 Cal.Rptr. 102

Joan Adele RYNSBURGER, Thomas P. Rynsburger, et al., Plaintiffs, Respondents and Appellants,

v.

DAIRYMEN'S FERTILIZER COOPERATIVE, INC., a corporation, Defendant, Petitioner and Respondent.

Civ. 9084.

California Court of Appeal, Fourth District, Second Division

Sept. 30, 1968.

Hearing Denied Nov. 27, 1968.

Page 270

[Copyrighted Material Omitted]

Page 271

Dannemeyer & Tuohey and Conrad G. Tuohey, Fullerton, for plaintiffs, respondents and appellants.

Richards, Watson & Hemmerling and Glenn R. Watson, Los Angeles, for defendant, petitioner and respondent.

OPINION

KERRIGAN, Associate Justice.

In July 1965 appellants filed suit in the Orange County Superior Court for the purpose of obtaining

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an injunction to abate a nuisance against the Dairymen's Fertilizer Cooperative, Inc., and three officials thereof. Inasmuch as the officers and directors are only nominal parties, the corporate entity will be regarded herein as the sole adverse party and will be referred to as 'Dairymen's' or 'Respondent.'

Respondent is a nonprofit cooperative corporation formed by a combination of dairymen for the purpose of removing manure from the numerous dairies in the area in and around the city of Dairy Valley 1 to the respondent's plant where it is stockpiled, composted, packaged and sold as commercial fertilizer. Appellants are eleven homeowners who reside in close proximity to the fertilizer plant. Their residences are situated in different geographical areas: three live in the city of La Palma, in the county of Orange; two in the city of Lakewood, Los Angeles County; two in the city of Dairy Valley (Cerritos), in Los Angeles County; two in the city of Cypress in Orange County; and finally, two reside in an unincorporated area of Orange County.

Dairymen's had maintained a manure stockpile and fertilizer facility at 13155 183rd Street in the city of Dairy Valley for approximately eight years. In 1964 the State Division of Highways acquired the site for the development of the Artesia Freeway. It therefore became necessary for the respondent to acquire another location for the conduct of its business. Consequently, it purchased a 12-acre parcel of property located at 12801 Del Amo Boulevard in Dairy Valley for $360,000. Respondent was granted a 'zone special use permit' in May 1965 for the construction of a fertilizer plant, subject to compliance with certain operating conditions imposed by the Dairy Valley City Council.

Dairymen's parcel is situated approximately 600 feet from the nearest residential property in La Palma, 500 feet from the nearest residential property in Cypress, and approximately 200 feet from the nearest residential property in Lakewood.

In July 1965 appellants filed the Orange County Superior Court action for an injunction to abate a nuisance, and secured an ex parte temporary restraining order prohibiting respondent from conducting fertilizer operations on the new site. However, the temporary restraining order was dissolved

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in October 1965, and Dairymen's was permitted to undertake operations on the subject property. In dissolving the temporary restraining order and denying a preliminary injunction, the court found that Dairymen's operations were necessary for health purposes, and that any harm to appellants was outweighed by the sanitary utility of Dairymen's function in removing the daily manure deposits of the thousands of cows maintained in the numerous dairies located in the city of Dairy Valley and the surrounding communities.

In February 1966 appellants' counsel appeared before the city councils of La Palma, Cypress and Lakewood and requested that an action be initiated by the municipalities to abate respondent's operations. In March 1966 the cities of La Palma and Cypress jointly filed a nuisance action in the Orange County Superior Court. The city of Lakewood filed a similar suit the following month in the Los Angeles Superior Court. After the issues were joined, it was stipulated that the municipalities' actions against Dairymen's be consolidated and that the venue be changed to the San Bernardino County Superior Court.

Trial of the consolidated suits commenced in the San Bernardino forum in May 1966 and ended a month later. Over sixty witnesses were called. Several of the appellants from the cities of La Palma, Cypress and Lakewood testified, but the court refused testimony of those appellants residing in Dairy Valley and those living in the unincorporated area of Orange County.

The San Bernardino County trial court found, Inter alia, that: the respondent's operations had Not created and did Not constitute a public nuisance; a stockpiling and fertilizing operation on the Del Amo property would not create or constitute a public nuisance if the operations were conducted in conformity with the...

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