Bowlin v. George

• Decision Date: 10 January 1962
• Docket Number: No. 17862,17862
• Court: South Carolina Supreme Court
• Parties: R. L. BOWLIN, Respondent, v. Corinne B. GEORGE and Douglas B. Cox, doing business as Bud's Auto Wrecking Company, of whom the defendant, Douglas B. Cox, doing business as Bud's Auto Wrecking Company is, Appellant.

Page 528

123 S.E.2d 528

239 S.C. 429

R. L. BOWLIN, Respondent, v. Corinne B. GEORGE and Douglas B. Cox, doing business as Bud's Auto Wrecking Company, of whom the defendant, Douglas B. Cox, doing business as Bud's Auto Wrecking Company is Appellant.

No. 17862.

Supreme Court of South Carolina.

Jan. 10, 1962.

Williams & Henry, W. E. Bowen, Greenville, for appellant.

J. G. Leatherwood, Pyle & Pyle, Greenville, for respondent.

OXNER, Justice.

This is an action to recover damages alleged to have resulted to plaintiff from a nuisance (a motor vehicle junk yard) and to enjoin the continuance thereof. The defendants demurred to the complaint upon the ground that it fails to state facts sufficient to constitute a cause of action. From an order sustaining the demurrer as to defendant Corinne B. George and overruling it as to the defendant Douglas B. Cox, doing business as Bud's Auto Wrecking Company, the last named defendant has appealed.

Plaintiff alleged that he is the owner of a 14 acre tract of land near the City of Greenville upon which many years ago he erected a home where he and his family now reside; that many other residences have since been built in this vicinity; that his property is ideally situated for the development of a residential subdivision; that defendant Mrs. George is the owner of a 4.2 acre tract of land adjoining his property which she leased to defendant Cox who, 'with the full knowledge, consent and acquiescence' of the Lessor, has established and since maintained an enormous and extensive automobile junk yard thereon, doing business under the name and style of Bud's Auto Wrecking Company; that said junk yard has been in operation for approximately a year; that there are now on said premises 'hundreds of old wrecked automobiles and parts of several hundred other automobiles', which 'provide for an accumulation of water in old automobile casings and other receptacles in said junk yard, which water becomes stagnant and a breeding place for mosquitoes, and by the maintenance of said junk yard, said defendant, Douglas B. Cox, has permitted a considerable growth of weeds on said premises, in under and about said junked automobiles and parts where mosquitoes harbor and flourish and where rubbish is concealed.'

It is then alleged: 'That asaid junk yard adjoins plaintiff's property and is in close proximity to his home where he and his wife live; that subsequent to the establishment of said junk yard, the plaintiff and his wife have been made to endure much discomfort and inconvenience by reason of their home becoming infested with mosquitoes which, as plaintiff is informed and believes, were bred on the premises occupied by the defendant, Douglas B. Cox, thereby causing plaintiff and his wife much annoyance and forcing plaintiff and his wife to remain indoors and preventing them from enjoying their property and the simple pleasures of life to which they are entitled.'

Finally, it is alleged that said junk yard constitutes a nuisance as a result of which 'the comfort of the plaintiff and his wife and their health and welfare have been greatly impaired and the value of plaintiff's property has been greatly depreciated, all to his great damage in the sum of $50,000.00.

While the business of wrecking automobiles and salvaging the parts is a legitimate one and not a nuisance per se, it may become a nuisance per accidents by reason of its improper location or the manner in which it is conducted. Parkersburg Builders Material Co. v. Barrack, 118 W. Va. 608, 191 S.E. 368, 192 S.E. 291, 110 A.L.R. 1454; Kubby v. Hammond, 68 Ariz. 17, 198 P.2d 134; Annotation 110 A.L.R. 1461; 39 Am.Jur., Nuisances, Section 70. The same is true as to the business of operating an automobile sales lot. Annotation 56 A.L.R.2d 776. This is but an application of the following general principle stated by Blackstone, and quoted with approval in Frost v. Berkely Phosphate Co., 42 S.C. 402, 20 S.E. 280, 283 L.R.A. 693: 'If one does any other act in itself lawful, which yet, being done in that place, necessarily tends to the damage of another's property, it is a nuisance, for it is incumbent upon him to find some other place to do that act, whre it will be less offensive.' Or, as stated in Village of Euclid, Ohio v Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303: 'A nuisance may be merely a right thing in the wrong place, like a pig in the parlor instead of the barnyard.'

In Jordan v. Luippold, 189 Okl. 189, 114 P.2d 917, it was held that evidence that a junk yard in a residential section was kept in such condition as to be a breeding place for mosquitoes, rats and green flies, that bones in the junk yard gave off noxious odors, and that adjacent owners were often disturbed by noise attending loading and unloading of scrap iron, justified a finding of a public and private nuisance. There was testimony in that case, as alleged in this case, that water collected in old automobile casings and other receptacles became stagnant and a breeding place for mosquitoes. In Yaffe v. City of Ft. Smith, 178 Ark. 406, 10 S.W.2d 886, the Court held that the finding of a nuisance was justified where the keeper of a junk pile in a city allowed cans and containers forming a part of it to collect water so as to become a breeding place for mosquitoes, to the injury of the health and comfort of persons connected with nearby businesses.

Giving the complaint in the instant case a liberal construction, as must be done in passing on the demurrer, we think under the above authorities that the facts stated are sufficient to justify a finding that the maintenance of this motion vehicle junk yard constitutes a nuisance per accidens. Respondent disclaims any intention of stating a cause of action based on a nuisance per se.

We find some difficulty in determining exactly in what particulars appellant claims that the complaint does not state a cause of action. The first position taken by him is stated thus: 'The complaint does not allege a cause of action for a nuisance per accidents in that the alleged accumulation of surface water cannot constitute a cause of action for a nuisance per accidens.' It is argued that if appellant has created any nuisance at all, it is a nuisance per § resulting from the accumulation of surface water, and, therefore, ...