Biglane v. Under the Hill Corp., 2005-CA-01751-SCT.

• Citation: 949 So.2d 9
• Decision Date: 08 February 2007
• Docket Number: No. 2005-CA-01751-SCT.,2005-CA-01751-SCT.
• Parties: James M. BIGLANE and Nancy K. Biglane v. UNDER THE HILL CORPORATION.
• Court: United States State Supreme Court of Mississippi

949 So.2d 9

James M. BIGLANE and Nancy K. Biglane v. UNDER THE HILL CORPORATION.

No. 2005-CA-01751-SCT.

Supreme Court of Mississippi.

February 8, 2007.

John G. Corlew, Virginia T. Munford, Jackson, Bruce M. Kuehnle, Jr., Philip Elmer Carby, Natchez, attorneys for appellants.

T. Mack Brabham, McComb, attorney for appellee.

Before WALLER, P.J., DIAZ and DICKINSON, JJ.

DIAZ, Justice, for the Court.

¶ 1. In this case we are asked two questions. First, was the noise coming from a local saloon such that it constituted a private nuisance to the residents of an apartment next door? Second, were the actions of the neighbor of the saloon a tortious interference with business relations? After a review of the case, we conclude there was a nuisance, but no tortious interference with business relations.

FACTS

¶ 2. "No spot on the American continent ever bore a viler name" wrote one historian about the section of Natchez that was closest to the mighty Mississippi River. Edith Wyatt Moore, Natchez Under-The-Hill 7 (1958). The spot gained its name from the bluffs of loess which the river carved through easily, creating an "upper" Natchez and the one called "under-the-Hill." "Early travelers described it variously as a gambler's paradise, a sink-hole of iniquity and a resort of the damned," likely because "legitimate business houses and firms lined the streets but . . . were far outnumbered by gambling dens, saloons, houses of ill repute," not to mention the presence of pirates and slave-traders— or the possibility that the rule of code duello might be invoked at any time. Id. at 7-9.

¶ 3. "For the size of it, there is not, perhaps in the world, a more profligate place," said one visitor, while another called it "hell on earth, with bells attached." David G. Sansing, Natchez: An Illustrated History 65 (1992). At one point "[s]treet brawling in Natchez became so prevalent that [Spanish Mayor Manuel] Gayoso issued a ban on knives and other metal weapons," to little effect. Id. at 46.

¶ 4. Straddling the uncertain area between crumbling cliffs and the wild river, Natchez Under-the-Hill suffered many natural disasters, and "[s]ome claim that the Great River, in revenge against the place that shamed its name, altered its course, widened its banks and gobbled up much of that awful place." Id. at 66. Indeed, the "fine mansions and patrician elegance" of the upper city "soon eclipsed the fame of Natchez's lower half, though both found an easy journey into lore and legend." Id. at 48.

¶ 5. Time and great changes in technology eliminated the necessity of Natchez as a port, as the riverboats gave way to steam-powered locomotives, which in turn gave way under the advent of automobiles and airplanes. "It was the area's infamous past, however, that eventually saved it and secured its future," as the growing tourist industry brought those persons who "could not resist the pull of the landing's past, the power of its legends or the magic of its name: Natchez Under-the-Hill." Id. at 164. Tourists began to flock to Silver Street—the only remaining portion of Under-the-Hill—in much the same way they began pilgrimages to sprawling and majestic homes such as Rosalie, the stately mansion used as a headquarters for the Union forces in the Civil War; Longwood, the legendarily-unfinished octagon house; and the Burn, used as a hospital during the War, with its towering spiral staircase.

¶ 6. Onto this stage strode the two families who take center stage in the case at hand. In 1967 Nancy and James Biglane purchased a dilapidated building at 27 Silver Street that had been built in the 1840s, and opened the lower portion of the building as a gift shop in 1978. In 1973, Andre Farish, Sr., and Paul O'Malley purchased the building directly next door, at 25 Silver Street, which had been built in the 1830s; in 1975 they opened the Natchez Under the Hill Saloon. Eventually the Saloon would come to be run by the children of Mr. Farish, Melissa and Andre, Jr.

¶ 7. The Saloon would establish itself proudly as a welcoming haven for locals and visitors alike, and maintained its presence on 25 Silver Street as other businesses came and went. The Biglanes began converting the upper floors of 27 Silver Street into a large apartment, which they moved into in 2002.

¶ 8. Despite installing insulated walls and windows, locating their bedroom on the side of the building away from the Saloon, and placing their air conditioner unit on the side nearest the Saloon, the Biglanes quickly realized they had a problem: the raucous nature of the Saloon kept them wide awake at night.

¶ 9. Specifically, it was live music, a hallmark of the Saloon. During the summertime the un-air conditioned Under the Hill opened its windows and doors to lessen the heat inside, and music echoed up and down Silver Street. While the music was easier on Mr. Biglane, who had lost his hearing over the years, it was particularly difficult on Mrs. Biglane, who was frustrated by the constant rock and roll, conversation, and the clack of pool balls.

¶ 10. The Biglanes contacted the Saloon and asked that the music be turned down, and it was: Mr. Farish got rid of Groove Line, the band that seemed to trouble the Biglanes the most, and installed thick windows to block noise. He also purchased a sound meter by which bands could measure their output in decibels, and forbade them from going over a certain point.

¶ 11. Still dissatisfied, the Biglanes blocked off two nearby parking lots that served the Saloon, using a cable over the entrance of one and crafting a metal gate over another. Ultimately this classic neighborly dispute spilled into the Chancery Court of Adams County, prompted by a complaint from the Biglanes.

¶ 12. The couple alleged private nuisance, among other causes of action, and Under the Hill counterclaimed, alleging that the Biglanes had tortiously interfered in its business (by blocking the nearby parking lots) and defamed them (by sending a letter of complaint to the City Attorney).

¶ 13. The trial court heard multiple witnesses who testified to a dazzling array of subjects, including a historian who described the origins and evolution of under-the-Hill and a doctor with an expertise in sound who played loud music in court to replicate the alleged decibel levels of Under the Hill. The trial court ultimately rendered a highly detailed and intricately reasoned opinion and order than ran to 17 pages.

¶ 14. The chancellor determined that Under the Hill was a private nuisance to the Biglanes, and enjoined the Saloon from leaving open any doors or windows when music was playing, and ordered it to prevent patrons from loitering in the streets. The trial court also found that the Biglanes had tortiously interfered with the business relations of Under the Hill. Although no damages were actually shown, the trial court assessed nominal and punitive damages because of the intentional character of the conduct.

¶ 15. In lieu of setting an amount for damages, the trial court attempted to bring the parties together for "the opportunity to reach some type of an agreement which will allow the Under the Hill Saloon employees and patrons to park in the Water Street area." This attempt to reconcile the parties failed, and the Biglanes quickly filed a motion that the trial court reconsider its ruling regarding punitive damages. It did so, voiding the award of punitive damages and setting nominal damages at $500.

¶ 16. Aggrieved, the Biglanes appealed, arguing that damages were improperly awarded, and Under the Hill cross-appealed, arguing that its business was not a private nuisance.

STANDARD OF REVIEW

¶ 17. In this case we are presented with questions of law and fact arising from the determination of a chancery court. We "always review a chancellor's findings of fact, but . . . will not disturb the factual findings of a chancellor when supported by substantial evidence unless [we] can say with reasonable certainty that the chancellor abused his discretion, was manifestly wrong, clearly erroneous or applied an erroneous legal standard." Cummings v. Benderman, 681 So.2d 97, 100 (Miss.1996). We use a de novo standard when analyzing questions of law. Id.

DISCUSSION

I. Is the Under the Hill Saloon a Private Nuisance to the Biglanes?

¶ 18. The Biglanes asserted that the Saloon was a private nuisance. "A private nuisance is a nontrespassory invasion of another's interest in the use and enjoyment of his property." Leaf River Forest Prods., Inc. v. Ferguson, 662 So.2d 648, 662 (Miss.1995). "One landowner may not use his land so as to unreasonably annoy, inconvenience, or harm others." Id. (internal quotations and citation omitted).

¶ 19. An entity is subject to liability for a private nuisance only when its conduct is a legal cause of an invasion of another's interest in the private use and enjoyment of land and that invasion is either (a) intentional and unreasonable, or (b) unintentional but otherwise provides the basis for a cause of action for negligent or reckless conduct or for abnormally dangerous conditions or activities. Id.

¶ 20. The trial court proceeded under the first path of liability—whether the conduct complained of was intentional and unreasonable. After reviewing the evidence presented at trial, the chancellor found ample evidence that the Biglanes frequently could not use or enjoy their property—significantly, that Mrs. Biglane often slept away from the apartment on weekends to avoid the noise and that she could not have her grandchildren over on the weekends because of the noise. The audiologist who testified for the Biglanes concluded that the noise levels were excessive and unreasonable, although he also conceded that he had never measured the noise levels in the couple's bedroom. This problem was exacerbated during the summer months, when the un-airconditioned Saloon left its doors and windows open to defray the oppressive Natchez heat.

¶ 21. The Saloon did offer a...