Burgess v. Omahawks Radio Control Organization

• Decision Date: 25 January 1985
• Docket Number: No. 83-684,83-684
• Citation: 219 Neb. 100,362 N.W.2d 27
• Parties: Robert H. BURGESS et al., Appellants, v. OMAHAWKS RADIO CONTROL ORGANIZATION, A Nonprofit Nebraska Corporation, et al., Appellees.
• Court: Nebraska Supreme Court

Page 27

362 N.W.2d 27

219 Neb. 100

Robert H. BURGESS et al., Appellants, v.OMAHAWKS RADIO CONTROL ORGANIZATION, A Nonprofit Nebraska Corporation, et al., Appellees.

No. 83-684.

Supreme Court of Nebraska.

Jan. 25, 1985.

Syllabus by the Court

1.Equity: Appeal and Error.Equity actions on appeal to this court are triable de novo on the record, subject to the rules that where credible evidence on material issues is in conflict, this court will consider that the trial court observed the witnesses and accepted one version of the facts over another, and where the trial court has viewed the premises, this court is required to consider any competent and relevant facts revealed by the view and any findings made by the court, provided that the record contains competent evidence to support the findings.

2.Nuisances.Generally, noise is not a nuisance per se, but it may be of such a character as to constitute a nuisance in fact, which may serve as the basis of an action at law or in equity, even though it arises from the operation of a factory, industrial plant, or other lawful business or occupation.

3.Nuisances.Whether noise is sufficient to constitute a nuisance depends upon its effect upon an ordinary, reasonable man, that is, a normal person of ordinary habits and sensibilities.Relief cannot be based solely upon the subjective likes and dislikes of a particular plaintiff, and relief must be based upon an objective standard of reasonableness.

4.Nuisances: Presumptions.To justify abatement of a claimed nuisance, the annoyance must be such as to cause actual physical discomfort to one of ordinary sensibilities.There is a presumption, in the absence of evidence to the contrary, that a plaintiff in an action for abatement of a nuisance has ordinary sensibilities.

5.Actions: Zoning: Ordinances: Injunction: Standing.A private individual, with standing, may bring suit in district court to enjoin an alleged violation of the zoning laws or ordinances.

Gregory R. Abboud, Ralston, for appellants, and on brief, Robert H. Burgess, Elkhorn.

Raymond M. Crossman, Jr., Crossman, Norris & Hosford, Omaha, for appellees.

KRIVOSHA, C.J., and BOSLAUGH, WHITE, HASTINGS, CAPORALE, and SHANAHAN, JJ., and COLWELL, District Judge, Retired.

WHITE, Justice.

Plaintiffs-appellants, Robert H. Burgess and Maria Burgess, filed this action seeking to permanently enjoin the defendants-appellees, Omahawks Radio Control Organization (Omahawks), a nonprofit Nebraska corporation, and Louise Field Prugh, from operating a radio-controlled model aircraft flying site at 172d and Ida Streets in western Douglas County, Nebraska.Plaintiffs occupy a neighboring property and allege that the defendants' activities constitute both a private noise nuisance and a violation of the zoning ordinances of the city of Omaha.After a trial the lower court dismissed plaintiffs' petition.The plaintiffs then perfected this appeal, in which they contend that the trial court erred in failing to find that the Omahawks' activities constitute a nuisance and in failing to find that the Omahawks' activities violated the zoning ordinances of the city of Omaha.

This matter, being equitable in nature, is reviewed by this court de novo on the record, subject to the rules that (1) where credible evidence on material issues is in conflict, this court will consider that the trial court observed the witnesses and accepted one version of the facts over another, and (2) where the trial court has viewed the premises, this court is required to consider any competent and relevant facts revealed by the view and any findings made by the court, provided that the record contains competent evidence to support the findings.Neb.Rev.Stat. § 25-1925(Reissue 1979);Darsaklis v. Schildt, 218 Neb. 605, 358 N.W.2d 186(1984).We note that the trial judge viewed the premises and that the record does not contain any findings which are specifically based on that view.

Generally, an owner of property has a right to make any use of it he sees fit.It is only where his use prevents his neighbors from the enjoyment of their property that an owner's use may be restricted.The burden rests on the one complaining to establish that the use being made of the property must necessarily create a nuisance.Prauner v. Battle Creek Coop. Creamery, 173 Neb. 412, 113 N.W.2d 518(1962).It is generally recognized that under certain circumstances noise may constitute a nuisance and be enjoined.Generally, noise is not a nuisance per se, but it may be of such a character as to constitute a nuisance in fact, which may serve as the basis of an action at law or in equity, even though it arises from the operation of a factory, industrial plant, or other lawful business or occupation.Whether noise is sufficient to constitute a nuisance depends upon its effect upon an ordinary, reasonable man, that is, a normal person of ordinary habits and sensibilities.Relief cannot be based solely upon the subjective likes and dislikes of a particular plaintiff, and must be based upon an objective standard of reasonableness.To justify abatement of a claimed nuisance, the annoyance must be such as to cause actual physical discomfort to one of ordinary sensibilities.It is presumed, in the absence of evidence to the contrary, that a plaintiff has ordinary sensibilities.Daugherty v. Ashton Feed and Grain Co., Inc., 208 Neb. 159, 303 N.W.2d 64(1981).

With these legal principles in mind, the record reveals the following facts.Omahawks is a nonprofit Nebraska corporation with approximately 150 members.It has a lease with Louise Prugh to 160 acres of land on which members fly their model aircraft.The land is located at 172d and Ida Streets, in rural surroundings.According to the plaintiffs, the flying activities begin in early spring and continue, weather permitting, until late fall.Members can commence flying at 9 a.m. and must cease at dark except on Mondays, when they must cease at 6 p.m.Each aircraft flown at the field must be evaluated and certified by the Omahawks' noise abatement committee as being in compliance with the noise abatement criteria established by the Federation Aeronautique Internationale and the current standards presently enforced by the Occupational Safety and Health Administration.The field rules and noise abatement regulations have been disseminated to all members of the club, and these rules and regulations are strictly enforced.

In August of 1981the plaintiffs purchased their residence at 178th and Ida Streets.The model aircraft flight pattern takes the planes no closer than four to six blocks from the plaintiffs' property.It is the...