Bruskland v. Oak Theater, Inc., 32238

• Decision Date: 30 March 1953
• Docket Number: No. 32238,32238
• Citation: 254 P.2d 1035,42 Wn.2d 346
• Parties: BRUSKLAND et al. v. OAK THEATER, Inc. et al.
• Court: Washington Supreme Court

Page 346

42 Wn.2d 346

254 P.2d 1035

BRUSKLAND et al. v. OAK THEATER, Inc. et al.

No. 32238.

Supreme Court of Washington, Department 2.

March 30, 1953.

Ferguson & Burdell, Seattle, for appellant.

Allen, Hilen, Froude, DeGarmo & Leedy, Seattle, for respondent.

GRADY, Chief Justice.

This action was brought by respondents to recover damages arising out of the creation and maintenance of a private nuisance by appellants. The jury rendered a verdict for respondents and from the judgment entered therein an appeal has been taken. The verdict is supported by the following factual situation, which we gather from the record:

In 1936 respondents acquired a small tract of land in an area east of Lake Washington and have since resided thereon and made the same a home for themselves and their family. The area was made up of small farms. In 1939 the main highway leading east from Seattle was constructed; it is known as Sunset highway and lies along the north of the particular area involved in this case. About 1948 state highway No. 2A (east Pacific highway) was constructed. It is a north-south highway and runs along the west side of such area. On the east side of the area is 128th avenue S. E. Southeast 38th place is a street running in a southeasterly direction from No. 2A to 128th avenue S. E. The home of respondents is located on a four-acre tract abutting on the south side of 38th place.

Public zoning authority authorized the establishment of a small business district and the erection of a drive-in theater in the area, the latter being in the northeasterly part thereof. The part of respondents' property north of 38th place is in the business district. The theater was constructed in 1950. When appellants constructed the theater, they were confronted with an exit and entrance problem. The state highway department objected to placing the entrance directly off Sunset highway, King county objected to the use of 128th avenue on the east, and the business district prevented an approach from the west. Instead of exercising their right to have ingress and egress to and from the public highways, appellants acquired an 85-foot strip of land between the westerly part of the theater and 38th place for such purposes.

The driveway intersects 38th place at an acute angle and substantially in front of respondents' residence. The patrons of the theater are required to make a sharp turn with their automobiles at the intersection. Much noise is made by the motors; there is a shrieking of brakes and the attendant noise caused by the rapid moving of an automobile around a sharp corner. Traffic congestion adds to the noise and confusion. The headlights of the automobiles shine upon a bedroom window of the dwelling house. Considerable noise is made by the method used in changing and adjusting an advertising sign. The result of the foregoing is that respondents are unreasonably and substantially disturbed in their comfort and repose and the enjoyment of their property, and its market value has been depreciated.

The court, in instructions commendable for their clarity and brevity, informed the jury that, the area occupied by the theater having been properly zoned for such use, appellants had the right to operate it in a lawful manner; that every person had a right to use his own property as he saw fit so long as his use of it would not invade the rights of his neighbor unreasonably and substantially; that the law recognized that absolute quiet and repose in a dwelling was impossible, and that those who lived upon highways must assume the burden of ordinary activities thereon; that appellants became liable to respondents when, and only when, the conduct of their business unreasonably and substantially interfered with the quiet enjoyment of respondents of their home; hence, before respondents were entitled to recover a verdict against appellants, they must prove by fair preponderance of the evidence that the noise, if any, emanating from the premises of appellants was such as would substantially and unreasonably disturb their repose and the enjoyment of their property.

The jurors were informed that, if the acts and conduct of appellants resulted in a depreciation in the value of the real property of respondents, this would be an item of damage to be considered in arriving at their verdict.

The jurors were further informed that, if it appeared from the evidence that before the commencement of the theater operation, noises of truck traffic upon Sunset highway were such that they could be heard inside the home of respondents, they might take that into consideration in determining whether or not there had been an unreasonable and substantial invasion of respondents' repose and enjoyment of their home by reason of the theater operation. The court explained the meaning and proper application of 'a substantial invasion' of the rights of respondents and informed the jurors that, in determining whether appellants had invaded the rights of respondents unreasonably they should consider the latter as being persons of average sensibilities; that the question of liability did not depend upon how respondents themselves were affected, but upon how ordinary persons occupying the home or premises of respondents would have been affected by the acts of appellants; and that, if they found that ordinary persons would be only slightly disturbed by the activities of appellants, then the verdict should be in...