Cannon v. Neuberger

• Decision Date: 22 March 1954
• Docket Number: No. 8083,8083
• Citation: 268 P.2d 425,1 Utah 2d 396
• Parties: d 396 CANNON, v. NEUBERGER et ux.
• Court: Utah Supreme Court

Page 425

268 P.2d 425

1 Utah 2d 396

CANNON, v. NEUBERGER et ux.

No. 8083.

Supreme Court of Utah.

March 22, 1954.

George C. Heinrich, Logan, for appellant.

George D. Preston, Logan, for respondents.

DUNFORD, District Judge.

Plaintiff brought this action to abate a claimed nuisance in the form of three Carolina Poplar trees and two Siberian Elm trees which defendants have upon their property. The trial court ordered the Carolina Poplar trees 'topped' by cutting twenty feet from the tops thereof, ordered removed the dead wood and sufficient of the branches to overcome a danger of the trees being blown over onto plaintiff's property. Plaintiff appealed claiming under three assignments of error, that the court should have ordered defendants to remove the offending trees from their property or require them to so control their growth as to keep their branches from overspreading, or the roots from permeating, or the leaves, twigs and branches from falling or being blown upon plaintiff's lot and buildings. We affirm the judgment of the lower court with costs to the respondents.

This action being in equity, the court will review the evidence and determine its weight. However, much consideration must be given to the trial court's findings, inasmuch as the presiding judge saw and heard the witnesses, had a better opportunity to determine their knowledge of the facts testified to, to observe their demeanor indicating interest, prejudice, etc., and particularly inasmuch as he went upon the premises in question, and made first hand observation of conditions existing. Kinsman v. Utah Gas & Coke Co., 53 Utah 10, 177 P. 418. Kubby v. Hammond, 68 Ariz. 17, 198 P.2d 134. Erickson v. Hudson, 70 Wyo. 317, 249 P.2d 523. Smith v. Smith, Utah, 262 P.2d 283.

Our statute Section 78-38-1, U.C.A.1953, defining nuisances and prescribing actions to correct, coming originally from the California Code of Civil Procedure, has been in effect in this State without change for a great many years and decisions of this court upon the question have been made in light of its provisions; but our court, as it well may, (see State v. Mortensen, 26 Utah 312, 73 P. 562, 633) has never interpreted the first word of the statute to mean 'anything at all which (is) any person considers to be offensive to the senses,' etc. Rather it has held that the term 'nuisance' is applied to 'the unreasonable, unwarrantable or unlawful use by a person of his property', and that 'every person has a right to the reasonable enjoyment of his property. As to what is a reasonable use of one's property must necessarily depend upon the circumstances of each case, for a use for a particular purpose and in a particular way, in one locality, that would be lawful and reasonable might be unlawful and a nuisance in another. 1 Wood on Nuisances (3d Ed.) Secs. 1 and 2. The test of whether the use of the property constitutes a nuisance is the reasonableness of the use complained of in the particular locality and in the manner and under the circumstances of the case.' Dahl v. Utah Oil Refining Co., 71 Utah 1, 262 P. 269, 273. (Emphasis added.) A stricter construction of the statute would make community living almost impossible and the plaintiff here would, himself, (considering the Siberian Elm upon his own lot) probably be defendant tomorrow in suits by his neighbors on all sides. For that reason, our courts have not followed the California courts in interpreting and applying the statute. For typical interpretations of the statute in that state see Shevlin v. Johnson, 56 Cal.App. 563, 205 P. 1087; Stevens v. Moon, 54 Cal.App. 737, 202 P. 961.

In Coon v. Utah Construction Co., Utah, 228 P.2d 997, 998, which was a low action for damages based upon a claimed nuisance, this court pointed out that:

'* * * The trial court made findings of fact to the effect that the defendant operated its trucks in the usual and ordinary manner in the use of the public highway, and while plaintiffs were annoyed thereby, such operations did not cause any physical damage to their house nor contribute in any way to the widening of the cracks in the foundation and walls previously existing, and that plaintiffs had failed to prove any damage from dust or fumes. The court concluded that the operations of defendant on said public highway by the use of its trucks in hauling gravel and soil, was a lawful use of the highway and did not create a nuisance nor cause any legal damage to plaintifffs.' (Emphasis added.)

These were all of the findings of fact necessary in that case to support a conclusion of law to the effect that there was no actionable nuisance.

In this case the primary evidence concerning the penetration of plaintiff's property by roots came from the excavation of the foundation for an added room upon his home in 1952. Yet it is undisputed that the plaintiff...