Burch v. Nedpower Mount Storm, LLC

• Decision Date: 08 June 2007
• Docket Number: No. 33201.,33201.
• Parties: Jerome E. BURCH, Levi Miller, Frank Fitzpatrick, Charles E. Thomas, Richard Fiedler, Robert F. Hurley, and John T. Mitchell, Plaintiffs Below, Appellants v. NEDPOWER MOUNT STORM, LLC and Shell Windenergy, Inc., Defendants Below, Appellees.
• Court: West Virginia Supreme Court

647 S.E.2d 879

Jerome E. BURCH, Levi Miller, Frank Fitzpatrick, Charles E. Thomas, Richard Fiedler, Robert F. Hurley, and John T. Mitchell, Plaintiffs Below, Appellants v. NEDPOWER MOUNT STORM, LLC and Shell Windenergy, Inc., Defendants Below, Appellees.

No. 33201.

Supreme Court of Appeals of West Virginia.

Submitted April 17, 2007.

Decided June 8, 2007.

Dissenting Opinion of Justice Benjamin July 27, 2007.

Syllabus by the Court

1. "A motion for judgment on the pleadings presents a challenge to the legal effect of given facts rather than on proof of the facts themselves. In this respect it is essentially a delayed motion to dismiss. The West Virginia Rules of Civil Procedure approach the motion essentially as a motion to dismiss for failure to state a claim in that the motion will not be granted except when it is apparent that the deficiency could not be cured by an amendment." Syllabus Point 2, Copley v. Mingo County Bd. of Educ., 195 W.Va. 480, 466 S.E.2d 139 (1995).

2. "A circuit court, viewing all the facts in a light most favorable to the nonmoving party, may grant a motion for judgment on the pleadings only if it appears beyond doubt that the nonmoving party can prove no set of facts in support of his or her claim or defense." Syllabus Point 3, Copley v. Mingo County Bd. of Educ., 195 W.Va. 480, 466 S.E.2d 139 (1995).

3. "A private nuisance is a substantial and unreasonable interference with the private use and enjoyment of another's land." Syllabus Point 1, Hendricks v. Stalnaker, 181 W.Va. 31, 380 S.E.2d 198 (1989).

4. "An interference with the private use and enjoyment of another's land is unreasonable when the gravity of the harm outweighs the social value of the activity alleged to cause the harm." Syllabus Point 2, Hendricks v. Stalnaker, 181 W.Va. 31, 380 S.E.2d 198 (1989).

5. "The Public Service Commission of West Virginia has no inherent jurisdiction, power or authority and can exercise only such jurisdiction, power or authority as is authorized by statute." Syllabus Point 1, Eureka Pipe Line Co. v. Public Service Com'n, 148 W.Va. 674, 137 S.E.2d 200 (1964).

6. "In determining the meaning of a statute, it will be presumed, in the absence of words therein, specifically indicating the contrary that the legislature did not intend to innovate upon, unsettle, disregard, alter or violate . . . the common law[.]" Syllabus Point 27, in part, Coal & Coke Ry. Co. v. Conley, 67 W.Va. 129, 67 S.E. 613 (1910).

7. "One of the axioms of statutory construction is that a statute will be read in context with the common law unless it clearly appears from the statute that the purpose of the statute was to change the common law." Syllabus Point 2, Smith v. W.Va. State Bd. of Educ., 170 W.Va. 593, 295 S.E.2d 680 (1982).

8. The right of a person under the common law to bring in circuit court a nuisance claim to enjoin the construction and/or operation of an electric generating facility that is designated under federal law as an exempt wholesale generator is not precluded by the fact that the Public Service Commission of West Virginia has granted a siting certificate to the owner or operator of the facility pursuant to W.Va.Code § 24-2-1(c)(1) (2006) and related statutes.

9. "Noise alone may create a nuisance, depending on time, locality and degree." Syllabus Point 1, Ritz v. Woman's Club of Charleston, 114 W.Va. 675, 173 S.E. 564 (1934).

10. "Where an unusual and recurring noise is introduced in a residential district, and the noise prevents sleep or otherwise disturbs materially the rest and comfort of the residents, the noise may be inhibited by a court of equity." Syllabus Point 2, Ritz v. Woman's Club of Charleston, 114 W.Va. 675, 173 S.E. 564 (1934).

11. While unsightliness alone rarely justifies interference by a circuit court applying equitable principles, an unsightly activity may be abated when it occurs in a residential area and is accompanied by other nuisances.

12. An activity that diminishes the value of nearby property and also creates interferences to the use and enjoyment of the nearby property may be abated by a circuit court applying equitable principles.

13. "It is a general rule that when the thing complained of is not a nuisance per se, but may or may not become so, according to circumstances, and the injury apprehended is eventual or contingent, equity will not interfere; the presumption being that a person entering into a legitimate business will conduct it in a proper way so that it will not constitute a nuisance." Syllabus Point 2, Chambers v. Cramer, 49 W.Va. 395, 38 S.E. 691 (1901).

14. "When a person or corporation is authorized by the legislature by an express statute to do an act, or by the council of a city or town to which the power to authorize it has been delegated by a legislative act, such person or corporation cannot be regarded as committing a nuisance in the execution of such act nor proceeded against merely upon the theory that it is a nuisance, either at law or in equity." Syllabus Point 6, Watson v. Railway Co., 49 W.Va. 528, 39 S.E. 193 (1901).

15. "As a general rule, a fair test as to whether a business or a particular use of a property in connection with the operation of the business constitutes a nuisance, is the reasonableness or unreasonableness of the operation or use in relation to the particular locality and under all the existing circumstances." Syllabus Point 2, Mahoney v. Walter, 157 W.Va. 882, 205 S.E.2d 692 (1974).

16. "To sustain a[] [prospective] injunction inhibiting . . . [a] business, not per se constituting a nuisance, it must be shown that the danger of injury from it is impending and imminent and the effect certain." Syllabus Point 1, in part, Pope v. Bridgewater Gas Co., 52 W.Va. 252, 43 S.E. 87 (1903).

17. "To warrant the perpetuation of an injunction restraining, as a threatened nuisance, the erection of a building proposed to be used for legitimate purposes, the fact that it will be a nuisance if so used must be made clearly to appear, beyond all ground of fair questioning." Syllabus Point 3, Chambers v. Cramer, 49 W.Va. 395, 38 S.E. 691 (1901).

18. "Collateral estoppel will bar a claim if four conditions are met: (1) The issue previously decided is identical to the one presented in the action in question; (2) there is a final adjudication on the merits of the prior action; (3) the party against whom the doctrine is invoked was a party or in privity with a party to a prior action; and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action." Syllabus Point 1, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).

19. "Equity does not have jurisdiction of a case in which the plaintiff has a full, complete and adequate remedy at law, unless some peculiar feature of the case comes within the province of a court of equity." Syllabus Point 3, Severt v. Beckley Coals, Inc., 153 W.Va. 600, 170 S.E.2d 577 (1969).

20. "`Courts of equity exercise a very salutary jurisdiction in matters of nuisances.' Moundsville v. Ohio River Rr. Co., 37 W.Va. 92, 105-6, 16 S.E. 514, 20 L.R.A. 161. Where equity jurisdiction is rightfully invoked in such a matter, the enforcement also of a legal demand is ancillary." Syllabus Point 1, Lyons v. Viglianco, 122 W.Va. 257, 8 S.E.2d 801 (1940).

21. "In the matter of a private nuisance, the relief granted should be such as to cause the defendant no more injury than is necessary to protect the plaintiff's rights." Syllabus Point 2, Lyons v. Viglianco, 122 W.Va. 257, 8 S.E.2d 801 (1940).

Richard F. Neely, Esq., Neely & Hunter, Charleston, for the Appellants.

Stephen M. LaCagnin, Esq., Andrew M. Wright, Esq., Jackson Kelly PLLC, Morgantown, Christopher L. Callas, Esq., Jackson Kelly PLLC, Charleston, for NedPower Mount Storm LLC.

Samuel M. Brock III, Esq., Grant P.H. Shuman, Esq., Spilman Thomas & Battle, PLLC, Charleston, Reginald R. Smith, Esq. (Pro Hac Vice), L. Joseph Loveland, Esq. (Pro Hac Vice), Jonathan L. Marsh, Esq. (Pro Hac Vice), King & Spalding LLP, Houston, TX, for Shell WindEnergy Inc.

John D. Wooton, Esq., for Amici Curiae Grant County Landowners.

Vincent Trivelli, Esq., The Calwell Practice, PLLC, for Amicus Curiae West Virginia State Building and Construction Trades Council, AFL-CIO.

Dennis DiBenedetto, Esq., Grant County Prosecuting Attorney, for Amici Curiae The County Commission of Grant County, The Board of Education of Grant County, The Grant County Development Authority, The Sheriff of Grant County, and The Assessor of Grant County.

Jeffrey R. Roth, Esq., for Amici Curiae Grant County Landowners/Lessors Jason Kitzmiller, Mark Nichol, Andrew Lee Evans, Linda Evans, Vernon Hanlin, Norma Hanlin, Roy Jones, David Kline, Tim Park, Evelyn Streets, and Roger Whetzel.

MAYNARD, Justice.

The appellants appeal the April 7, 2006, order of the Circuit Court of Grant County that dismissed their nuisance claim in which they sought an injunction against the appellees, NedPower Mount Storm, LLC and Shell WindEnergy, Inc., to enjoin the appellees from constructing a wind power electric generating facility in close proximity to the appellants' property. For the reasons that follow, we reverse the circuit court and remand for proceedings consistent with this opinion.

I. FACTS

By final order dated April 2, 2003, the Public Service Commission ("the PSC") granted NedPower Mount Storm LLC, an appellee herein, a certificate of convenience and necessity¹ to construct and operate a wind power electric generating facility along the Allegheny Front in Grant County.² NedPower has entered into a contract with appellee Shell WindEnergy, Inc., to sell the entire facility to Shell upon its completion. It is contemplated that the wind power facility will be located on a site approximately 14 miles long with an average width of one-half mile.³ The facility is to include up to 200 wind turbines. Each turbine is to be mounted on a steel tower...