Borsvold v. United Dairies

• Decision Date: 28 February 1957
• Docket Number: No. 44,44
• Parties: , 82 A.L.R.2d 406 Oscar BORSVOLD and Clara Borsvold, his wife; Maude W. Weig; Harold O. Gunderson and Effie M. Gunderson, his wife; Edmund Griffin and Margaret K. Griffin, his wife; Thomas Van Kuiken; James Hugh McCraven; Tillie Davis; William C. Dowell and Marie E. Dowell, his wife; John Amazi and Shirley Amazi, his wife; Jack K. Chambers and Dorothy Chambers, his wife; and George Jureschi and Anna Jureschi, his wife, Plaintiffs, Appellees, and Cross-Appellants, v. UNITED DAIRIES, a Michigan corporation, and Joseph Freilich, Defendants, Appellants, and Cross-Appellees.
• Court: Michigan Supreme Court

Page 378

81 N.W.2d 378

347 Mich. 672, 82 A.L.R.2d 406

Oscar BORSVOLD and Clara Borsvold, his wife; Maude W. Weig Harold O. Gunderson and Effie M. Gunderson, his wife; Edmund Griffin and Margaret K. Griffin, his wife; Thomas Van Kuiken; James Hugh McCraven; Tillie Davis; William C. Dowell and Marie E. Dowell, his wife; John Amazi and Shirley Amazi his wife; Jack K. Chambers and Dorothy Chambers, his wife and George Jureschi and Anna Jureschi, his wife, Plaintiffs Appellees, and Cross-Appellants, v. UNITED DAIRIES, a Michigan corporation, and Joseph Freilich, Defendants, Appellants, and Cross-Appellees.

No. 44.

Supreme Court of Michigan.

Feb. 28, 1957.

Hayes & Hayes, by Allen M. Hayes, Highland Park, for plaintiffs, appellees and cross-appellants.

Piggins, Rehn, Balmer & Skillman, Detroit, Carroll C. Grigsby, Detroit, of counsel, for defendants and appellants.

Before the Entire Bench.

DEWARDS, Justice.

This chancery dispute arose between vigorous partisans of two separate essentials of human existence--foot and sleep. On one side the unhappy chancellor was faced with the economic need of a bustling dairy to start its milk trucks in the earliest hours of the morning. On the other side he was confronted by a plea for some relatively uninterrupted rest from the home owners in the immediate neighborhood.

The trial judge may well have had an ancient mariner's views in mind:

'Oh sleep! it is a gentle thing, Beloved from pole to pole!' ¹ for he ruled those activities of the dairy which interrupted the rest of the neighborhood to be a nuisance. And by injunction he restored quiet between the hours of 7 p. m. and 6:30 a. m.

Our question is whether or not the record justifies his action.

It will not assist our decision but it perhaps should be noted that the instant dispute arises basically from failure of the city of Detroit and the private subdividers thereof to initiate any planning or zoning prior to 1941 which was calculated to separate commercial and residential uses. The zoning ordinance, when adopted in this situation, patently described what already existed more than it planned what should be.

The plaintiffs each own homes on North Avenue, a residentially zoned and restricted street which runs from Log Cabin across the boundary between the city of Detroit and the city of Highland Park. Defendant United Dairies owns and operates, in conjunction with its dairy activites, a sizeable garage on commercial property fronting on Log Cabin at the intersection of North Avenue. Defendant Freilich is the owner of 3 lots across a public alley immediately to the rear of the United Dairies' garage. These vacant lots front on North Avenue. In recent years they have been leased to defendant United Dairies for the parking of its delivery trucks. They represent the legal battleground.

The 3 lots involved are numbers 208, 209, and 210 of the Hamilton Park Subdivision in Detroit and Highland Park, Michigan, on the south side of North Avenue immediately adjoining the western boundary of the subdivision.

The plaintiffs all own homes in the Hamilton Park Subdivision on North Avenue near defendants' lots. Of the plaintiffs, Mr. Amazi bought his home in 1950, Mr. Van Kuiken in 1941 or 1942, Mr. Dowell moved in in 1946, and the Borsvolds, who own lot 207 immediately adjoining the lots in question on the east, purchased in September, 1941 after having rented for 3 months.

All the lots in the subdivision are subject to the following restriction:

'No manufacturing, liquor, or other business shall be conducted upon said premises, nor shall any dwelling costing less than $1,500.00 be erected thereon.'

The lots in dispute were also zoned for residential use. But in October, 1952, in a curtain-raiser to the current dispute, the Detroit Board of Zoning Appeals determined that previous to the effective date of the zoning ordinance in 1940, United Dairies had a 'vested right of non-conforming use' to lot 210 for parking of trucks and cars in connection with dairy operations; but did not have such a right as to lots 208 and 209. Accordingly, the Board permitted United Dairies to continue using lot 210 subject to the conditions that a barrier 5 feet from the front property line be errected and the 5 foot strip be landscaped and maintained, and that another barrier be erected on the line between lots 210 and 209 to prevent vehicles from entering lots 209 and 208. This ruling has been complied with, and this record discloses no complaints subsequent to 1952 applicable to lots 208 and 209.

Presently lot 210 is used for overnight parking of about 10 trucks, 8 of which are of the ton or ton-and-a-half variety used for wholesale deliveries. The instant litigation concerns the fact that these wholesale trucks begin to pull out by about 3:00 a. m. and continue intermittently until about 7:00 a. m. This operation, plaintiffs' testimony indicated, is attended by various human and mechanical noises and odors all to the great discomfort of a neighborhood at slumber. Defendant offered testimony tending to establish that competition and police and union regulations require that defendant United Dairies commence activities during these hours, it being desirable that customers be served and the trucks off the street before the rush of daytime develops. Defendants' testimony also disputed the amount and kinds of noise claimed by plaintiffs. These trucks are all back on the lot by 6:00 p. m.

United Dairies estimates that it has put a little over $2,000 into the lots for upkeep purposes since 1938, about half of this amount being the estimated value of the labor of their own regular employees in leveling, etc.

There is a great deal of conflicting testimony as to how long United Dairies has actually been using the lots in question for parking purposes (since 1952, of course, only lot 210). All plaintiffs' witnesses say since about 1947, and all defendants' witnesses say since United Dairies moved in in 1938. Taking the testimony as a whole, however, it appears that United Dairies actually began in 1938 parking trucks of the smaller home delivery type in addition to private cars of employees mingled with those of the neighbors. Then, in about 1947 United Dairies bagan to make exclusive use of the property in dispute and began to park thereon overnight the larger type wholesale truck.

The trial judge summarized the testimony bearing upon the nuisance issue as follows:

'* * * the plaintiffs now claim that the defendants are making it almost impossible for them to have their rest at night with the conduct of the machines belonging to the defense that are stored in the lot; the moving of them out at early hours of the morning, racing of the motors, the fumes thereof, the odors that come from sour milk and cream, and other conditions which plaintiffs claim are violative of their rights.

'Defendants deny the claims of the plaintiffs, but insist that in conformity with the directions of the Zoning Board, they have gone to considerable expense of time, energy and money not only to have lots 208 and 9 presentable and to be used by the public for playground purposes, but that the equipment belonging to them is stored in a proper manner and is properly supervised; that there is no untoward conduct on the part of the drivers of such equipment; that there is no noise by the racing of motors or the loud talking of the drivers or any type of conduct which could be claimed to be improper or might offend the senses of the several plaintiffs.'

He then entered the following finding of fact:

'I think the entire litigation, all matters pertaining thereto, can be simmered down to the one pertaining to the moving of equipment on and off lot 210. I think the plaintiffs have made out their case with respect to the early morning hours of moving that equipment, which is destructive of the peace and rest of the neighborhood close at hand, and the neighbors who have testified in that action that the rest, which is so necessarily essential to human-kind is destroyed by the equipment moving out.'

The opinion concluded:

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