Barnes v. Graham Virginia Quarries, Inc.

• Decision Date: 11 September 1963
• Docket Number: 5575,Nos. 5574,s. 5574
• Citation: 204 Va. 414,132 S.E.2d 395
• Parties: LAURENCE A. BARNES v. GRAHAM VIRGINIA QUARRIES, INCORPORATED. GRAHAM VIRGINIA QUARRIES, INCORPORATED v. LAURENCE A. BARNES. Record
• Court: Virginia Supreme Court

Page 395

132 S.E.2d 395

204 Va. 414

LAURENCE A. BARNES v. GRAHAM VIRGINIA QUARRIES, INCORPORATED.

GRAHAM VIRGINIA QUARRIES, INCORPORATED v. LAURENCE A. BARNES.

Record Nos. 5574, 5575.

Supreme Court of Appeals of Virginia

September 11, 1963.

Rothwell J. Lillard (Robert J. McCandlish, Jr.; Randolph W. Church, Jr.; McCandlish, Lillard & Marsh, on brief), for appellant, Laurence A. Barnes, Record No. 5574; and for appellee, Laurence A. Barnes, Record No. 5575.

Lytton H. Gibson (Burch Millsap; George M. Giammittorio; Gibson, Hix, Millsap & Hansbarger; Benheim, Fagelson, Bragg & Giammittorio, on brief), for appellee, Graham Virginia Quarries, Inc., Record No. 5574; and for appellant, Graham Virginia Quarries, Inc., Record No. 5575.

JUDGE: WHITTLE

WHITTLE, J., delivered the opinion of the court.

Barnes, the complainant, filed a bill in chancery in the Circuit Court of Fairfax County seeking an injunction against the respondent, Graham Virginia Quarries, Incorporated, and compensation for damages to Barnes' residence caused by the blasting in respondent's quarry. Respondent filed a demurrer and answer; the demurrer being overruled.

A stipulation admitting in evidence a copy of the Zoning Ordinance of Fairfax County in effect during the period of time material to this suit, and a copy of the minutes of a meeting of the Fairfax County Board of Zoning Appeals was filed in the proceedings. A further stipulation of agreed facts was filed at the opening of the trial on September 21, 1961.

At the outset of the proceedings the chancellor, accompanied by the litigants and their counsel, took a view which consisted of a detailed inspection of complainant's residence, the premises on which said residence is located, and a trip by automobile through the immediate surrounding neighborhood.

After the view, the chancellor heard the testimony in behalf of complainant, and received in evidence various exhibits tendered by complainant. The prayer for an injunction was non-suited.

Upon the conclusion of complainant's evidence respondent moved to strike the evidence, which motion was denied. Thereupon respondent elected to rest its case without introducing evidence.

On January 9, 1962, the chancellor filed a memorandum opinion, and on March 3, 1962, the final decree was entered allowing complainant $3,041.80, which covered complainant's cost of moving from the premises to another location. The decree allowed complainant nothing for damages to his residence as claimed in the bill. Complainant objected to the entry of this decree on the ground that it allowed him nothing in the way of damages to his property, and cross-error was assigned and appeal taken by respondent to the court's allowing complainant the cost of moving.

By stipulation the two appeals (Records 5574 and 5575) have been consolidated to be heard as one, with Laurence A. Barnes occupying the position of appellant, and Graham Virginia Quarries, Incorporated, occupying the position of appellee in the consolidated appellate proceedings.

The evidence discloses that Barnes is the owner of a residence in the town of Occoquan, Prince William County, known as 'Rockledge'. The residence was built in 1758 by a noted colonial architect. The house was constructed of stone; the rear wall resting directly on stone, and the front wall on dirt. Foundations in the modern sense were not built under the walls but the residence was built in accordance with building practices prevailing at the time of construction. The surface of the ground at the site of the house slopes approximately 30 degrees from the rear toward the front. The rock ledge which underlies the house is the same rock ledge in which the respondent has operated the quarry from May 14, 1957, to the date of the trial, which quarry (located in Fairfax County) was operated under a use permit granted by the Board of Zoning Appeals of Fairfax County. The residence is located across the Occoquan river, in Prince William County, 500 feet from the quarry.

Barnes contends that the house had stood for approximately 200 years and had suffered no more than the normal deterioration due to the passage of time. He admits that some settlement had occurred during the years; some of the windows had settled out of plumb; some of the floors were no longer level, and some cracks had appeared in the plaster from time to time prior to the blasting, all of which he says was a normal and natural result of the aging process.

Complainant alleged and sought to prove that from May 14, 1957, the time the quarry began operations, the residence began to deteriorate rapidly, and that by the middle of January, 1960, 'the situation had deteriorated so that Mr. Barnes felt obligated to make a complete inspection to determine the structural condition of his residence. He found that the front wall of the house had buckled and other structural changes had occurred to such an extent that the house was deemed unsafe for occupancy.'

The trial court held that the course of conduct of the respondent as shown by the evidence constituted a private nuisance. We are of the opinion that the evidence supports this conclusion.

'* * * (When) a business, although lawful in itself, becomes obnoxious to neighboring dwellings and renders their enjoyment uncomfortable, whether by smoke, cinders, noise, offensive odors, noxious gases, or otherwise, the carrying on of such business is a nuisance * * *.' Face v. Cherry (1915), 117 Va. 41, 42, 43, 84 S.E. 10.

We have held that the term 'nuisance' embraces everything that endangers life or health, or obstructs the reasonable and comfortable use of property. Bragg v. Ives (1927), 149 Va. 482, 497, 140 S.E. 656.

In this jurisdiction we follow the general rule that it is not necessary to allege or prove negligence when the acts complained of result from a nuisance committed by another in a private capacity. G. L. Webster Co. v. Steelman (1939), 172 Va. 342, 357, 1 S.E.2d 305, 311.

Respondent contends that in this instance it is shielded from liability for a nuisance because it has secured a use permit for its operation pursuant to Fairfax County's zoning ordinance. This contention is without merit. The permit did no more than allow the respondent to do what the zoning law otherwise prohibited. The permit did not impose any public duty nor did it command the respondent to perform any public act. It is beyond the power of a county or municipality to authorize the maintenance of a nuisance. G. L. Webster Co. v. Steelman, supra, 172 Va., at page 358, 1 S.E.2d, at page 311; Benton v. Kernan, 127 N.J.Eq. 434, 13 A.2d 825; Vulcan Materials Co. v. Griffith, 215 Ga. 811, 114 S.E.2d 29, 34.

In dealing with respondent's assignment of cross-error, we agree with the chancellor's opinion that 'The uncontradicted evidence of complainant is that the blasting operations of defendant at least obstructed the reasonable and comfortable use of his dwelling and caused him to move therefrom. The cost of this moving has been stipulated to be $3,041.80, and complainant is entitled to this...