Belmar Drive-In Theatre Co. v. Illinois State Toll Highway Commission

• Decision Date: 23 May 1966
• Docket Number: No. 39502,DRIVE-IN,39502
• Citation: 216 N.E.2d 788,34 Ill.2d 544
• Parties: BELMARTHEATRE CO., Appellant, v. The ILLINOIS STATE TOLL HIGHWAY COMMISSION et al., Appellees.
• Court: Illinois Supreme Court

Page 788

216 N.E.2d 788

34 Ill.2d 544

BELMAR DRIVE-IN THEATRE CO., Appellant, v. The ILLINOIS STATE TOLL HIGHWAY COMMISSION et al., Appellees.

No. 39502.

Supreme Court of Illinois.

May 23, 1966.

Edward M. Gerrity, Sycamore, and Sears, Streit, Dreyer & Foote, Aurora (Edward M. Gerrity, Sycamore, and John E. Dreyer, Aurora, of counsel), for appellant.

William P. Richmond, Chicago (Sidley, Austin, Burgess & Smith, Chicago, of counsel), for appellee, Fred Harvey, Inc.

William G. Clark, Atty. Gen., Chicago (Thomas J. McCracken, Chicago, of counsel), for appellee, Illinois State Toll Highway Commission.

Corrigan & Mackay, Wheaton (John R. Mackay, Wheaton, of counsel), for appellee, Standard Oil Co. and the American Oil Co.

UNDERWOOD, Justice.

This action was initiated in the circuit court of Du Page County by Belmar Drivein Theatre Company to recover damages to its business allegedly caused by bright lights emanating from a toll-road service center, or 'oasis,' located on the Northwest Tollway adjacent to plaintiff's outdoor movie theatre. Named as defendants were the Illinois State Toll Highway Commission together with Standard Oil Company, American Oil Company and Fred Harvey, Inc., the operators of business concessions on the oasis. Asserting that constitutional questions are involved, plaintiff appeals from a judgment order dismissing its amended complaint as being insufficient at law.

The amended complaint consisted of three counts and the plaintiff's contentions here make it expedient to treat upon each count separately. The basic charge of count I is that brilliant artificial lights employed on the oasis and its approaches approximate the light of day and dispel darkness on neighboring premises, making it impossible to properly exhibit outdoor movies, and thus constitute a private nuisance which has caused a substantial decline in plaintiff's business and entitles it to damages. However, we are in accord with the determination of the trial court that the facts pleaded to support the charge of a private nuisance do not charge the defendants with an actionable wrong.

A nuisance at common law is that which unlawfully annoys or does damage to another. (City of Chicago v. Reuter Bros. Iron Works, Inc., 398 Ill. 202, 75 N.E.2d 355, 173 A.L.R. 266.) And although we find no Illinois decisions precisely in point, it may be conceded, as plaintiff contends, that the casting of light on the land of another may, in some circumstances, constitute a nuisance remediable by injunction or suit for damages. (E.g., The Shelburne, Inc. v. Crossan Corp., 95 N.J.Eq. 188, 122 A. 749; Nugent v. Melville Shoe Corp., 280 Mass. 469, 182 N.E. 825; National Refining Co. v. Batte, 135 Miss. 819, 100 So. 388, 35 A.L.R. 91; Hansen v. Independent School Dist. No. 1, 61 Idaho 109, 98 P.2d 959.) The latter decisions, however, have no application under the facts of the instant case.

It is established law that, to constitute a nuisance, the act, structure or device complained about must cause some injury, real and not fanciful, and must work some material annoyance, inconvenience or other injury to the person or property of another. (Joseph v. Wieland Dairy Co., 297 Ill. 574, 131 N.E. 94, 29 I.L.P., Nuisances, sec. 14.) So far as injury to the person is concerned, it is held that in deciding whether a particular annoyance is sufficient to constitute a nuisance the criterion is 'its effect upon an ordinarily reasonable man,--that is, a normal person of ordinary habits and sensibilities, * * *.' (39 Am.Jur., Nuisances, sec. 31, p. 311; see also 66 C.J.S. Nuisances § 18c.) As stated in Cooper v. Randall, 53 Ill. 24, at 27, 'the injury must be something more than * * * a question of mere delicacy or fastidiousness arising from elegant and dainty habits of life; * * *.' The same doctrine, indirectly recognized by this court in Department of Public Works and Buildings v. Bloomer, 28 Ill.2d 267, at 273, 191 N.E.2d 245, has been applied by American and English courts where the use to which a plaintiff puts his land is abnormally sensitive to the type of interference caused by the defendant, and is stated in Joyce, Law of Nuisances, sec. 26, in this manner: '* * * But the doing of something not in itself noxious does not become a nuisance merely because it does harm to some particular trade of a delicate nature in the adjoining property where it does not affect any ordinary trade carried on there nor interfere with the ordinary enjoyment of life. A man who carries on an exceptionally delicate trade cannot complain because it is injured by his neighbor doing something lawful on his property, if it is something which would not injure an ordinary trade or anything but an exceptionally delicate trade.' (See also: Amphitheaters Inc. v. Portland Meadows, 184 Or. 336, 198 P.2d 847, 5 A.L.R.2d 690; Sheridan Drive-in Theater, Inc., v. State of Wyoming, Wyo., 384 P.2d 597; Wright v. Commonwealth, 286 Mass. 371, 190 N.E. 593; Prosser on Torts, 2d ed., chap. 14, p. 396.) Again, it is stated in 5 A.L.R.2d 705: 'The private nuisance light cases, considered as a whole, seem to warrant the generalization that if the intensity of light shining from adjoining land is strong enough to seriously disturb a person of ordinary sensibilities, or interfere with an occupation which is no more than ordinarily susceptible to light, it is a nuisance; if not, there is no cause of action. The courts will not afford protection to hypersensitive individuals or industries.' The underlying notion of the doctrine is that a person cannot increase the liability of his neighbor by applying his own property to special and delicate uses, whether for business or pleasure.

Application of the doctrine here makes it clear that count I was insufficient to state a cause of action for a private nuisance. Its own allegations establish that the injury claimed is due solely to the exceptionally sensitive and delicate use to which plaintiff devotes its own property.

Ordinarily neither the negligence of the defendant nor the contributory negligence of the plaintiff is involved in an action with respect to a nuisance. (29 I.L.P., Nuisances, sec. 13; 66 C.J.S. Nuisances § 11.) However, apparently seeking to rely on the principle that negligence may become an issue when a lawful act becomes a nuisance by reason of its careless performance, (see: 66 C.J.S., Nuisances, § 9a(2); 39 Am.Jur., Nuisances, sec. 24; Fligelman v. City of Chicago, 348 Ill. 294, 180 N.E. 797,) plaintiff next argues that count I states a cause of action in negligence against defendants for their careless, needless and unreasonable use of extraordinarily brilliant light. Even by indulging in the most liberal of constructions of count I we do not find this to be so, and neither does it appear to our satisfaction that such negligence theory was pursued in the trial court. While there is language that the oasis was arbitrarily and carelessly constructed in close proximity to plaintiff's premises, it is devoid of allegations that negligence attends the use of the lights, and of allegations of the respects in which defendants are negligent. A complaint which fails to allege facts, the existence of which is necessary to enable plaintiff to recover does not state a cause of action, and its deficiency may not be remedied by liberal construction or argument. Cf. Allis-Chalmers Mfg. Co. v. City of Chicago, 297 Ill. 444, 130 N.E. 736; Walters v. Christy, 5 Ill.App.2d 68, 124 N.E.2d 658.

Plaintiff next contends that it was entitled to a jury determination of whether the use of its land was in fact delicate and sensitive, and on this basis argues that the dismissal of the nuisance charge deprived it of the right to a jury trial guaranteed by section 5 of article II of the Illinois constitution, S.H.A. We do not agree. There was no controverted or controversial issue of fact to be submitted to the jury. Plaintiff's own pleading is an admission that its business, or property use, is particularly sensitive to light. Moreover, it is common knowledge, and all reasonable men would agree, that the business of showing outdoor movies is a property use peculiarly and abnormally sensitive to light. (See: Amphitheaters Inc. v. Portland Meadows, 184 Or. 336, 198 P.2d 847, at 858.) The function of the jury is to decide disputed questions of fact, and it is obvious that where no such issue is presented there can be no denial of the right to a jury trial. (Diversey Liquidating Corp. v. Neunkirchen, 370 Ill. 523, 527, 19 N.E.2d 363, 120 A.L.R. 1395; 23 I.L.P., Juries, sec. 13.) Equally certain, in response to further...