Barrett v. Lopez

• Decision Date: 05 November 1953
• Docket Number: No. 5627,5627
• Citation: 44 A.L.R.2d 1377,262 P.2d 981,1953 NMSC 107,57 N.M. 697
• Parties: , 44 A.L.R.2d 1377 BARRETT et al. v. LOPEZ.
• Court: New Mexico Supreme Court

Page 981

262 P.2d 981

57 N.M. 697, 44 A.L.R.2d 1377

BARRETT et al. v. LOPEZ.

No. 5627.

Supreme Court of New Mexico.

Nov. 5, 1953.

Neal & Neal, Carlsbad, for appellants.

No counsel on appeal for appellee.

FOX, District Judge.

The appellants, plaintiffs below, brought this action to abate the operation by the defendant of a dance hall located in the Village of Loving, Eddy County, New Mexico. The plaintiffs contend that the activity incident to the operation of the dance hall amounts to a nuisance. The lower court entered judgment for the defendant and the plaintiffs have appealed.

The plaintiffs are the owners, occupants and tenants of property near and adjacent to the property and dance hall owned by the defendant, Jesus Lopez. The defendant conducts dances on his premises several times each month and these dances usually begin about 8:00 or 8:30 o'clock and close about 12:00 or 12:30 A.M. o'clock. A string orchestra usually plays at these functions.

The plaintiffs do not complain about the activity inside the dance hall, excepting the noise made by the orchestra. The plaintiffs do complain about the activities of the patrons of the dances outside the hall and, allegedly, incident to the operations of the dance hall. Generally, the activities complained of consist of the drinking of intoxicants and the discarding of bottles and cans on nearby property, public and private; fighting among patrons of the dance; the blocking of private driveways by automobiles belonging to defendant's customers; promiscuous urination by defendant's patrons on defendant's premises as well as nearby property, and defecation on nearby property, without regard to facilities provided for such purposes by defendant, and offensive odors resulting from such activity; love making in vehicles parked in the vicinity and the disposition of evidences of such on nearby property, yelling, cursing and loud and boisterous conversations during and after the dances; and indiscriminate horn-honking.

Numerous complaints to the city authorities were made by the plaintiffs and others pertaining to the operation of defendant's dance hall without any significant success, and this action followed.

It should be pointed out that the defendant has failed to resist plaintiffs' appeal to this Court and we must therefore decide this matter on the basis of the record and appellants' brief without the advantage of the views of the appellee.

The findings of fact entered by the trial court and the findings of fact requested by the plaintiffs are in substantial agreement with the facts set out hereinabove and any variances are not of material consequence.

The assignments of error urged by plaintiffs are directed toward the proposition that, although the trial court conceded the existence of the facts, generally, as laid out in plaintiffs' complaint, nevertheless, the court denied the brief sought on the grounds that the dances themselves were properly conducted, that those improper activities occurring outside the dance proper (but incident to the dances) were not peculiar to the patrons of the defendant's establishment but were generally engaged in throughout the Village of Loving, and, furthermore, that the village law enforcement authorities had the primary responsibility to stop such improper activities.

The record appears to bear out the plaintiffs' position. At one point in the trial, the Court interrupted the testimony of the mayor of the village to inquire: 'What is the Village of Loving doing, Mr. Mayor, to stop this improper use of personal property?' At another point in the testimony of the same witness the Court asked, 'What are they doing about this unnecessary horn blowing and skidding of tires and loud talk long after these dances?' In this same line two of the trial Court's findings are set out below:

The trial Court's Finding of Fact No. 10, states:

'The defendant provides rest rooms with running water to the rear of the dance hall for the use of the patrons at his hall, and on occasions persons atending the dances and entertainments at the hall urinate along the sidewalk and the streets and upon the property owned by some of these plaintiffs. This condition is not limited to the area surrounding the defendant's hall, but from the evidence appears to be general through out the Village of Loving and except for the increase in numbers of persons attending the public dances, bears no relation to the operation of the hall by the defendant.'

The trial Court's Finding of Fact No. 14 reads as follows:

'Much of the complaint of the plaintiffs or some of them is occasioned by a failure of the law enforcement officers in Loving to enforce city ordinances against urination upon the streets, against disturbance of the peace by loud noises, failure to prevent parking in...