City of Fredericktown v. Osborn, 32943

• Decision Date: 21 May 1968
• Docket Number: No. 32943,32943
• Parties: CITY OF FREDERICKTOWN, a Municipal Corporation, of the Fourth Class, Plaintiff, and Frank E. Gillett and Nellie Gillett, his wife, Plaintiffs-Respondents, v. Rosina OSBORN, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 17

429 S.W.2d 17

CITY OF FREDERICKTOWN, a Municipal Corporation, of the Fourth Class, Plaintiff and Frank E. Gillett and Nellie Gillett, his wife, Plaintiffs-Respondents, v. Rosina OSBORN, Defendant-Appellant.

No. 32943.

St. Louis Court of Appeals, Missouri.

May 21, 1968.

Roberts & Roberts, Farmington, for defendant-appellant.

Kenneth W. Shrum, Marble Hill, for plaintiffs-respondents.

DOERNER, Commissioner.

In a joint petition filed in the Circuit Court of Madison County, the City of Fredericktown and Frank E. Gillett and Nellie Gillett, his wife, alleged that the defendant Rosina Osborn was conducting a commercial dog kennel on her property in said city, and in connection therewith kept a large number of all kinds of dogs on her premises; that defendant's business was in violation of certain specified ordinances of the city; and that it constituted a public nuisance, or a priviate nuisance as to the Gilletts, or both; and that the Gilletts, whose home is adjacent to that of defendant's had suffered special injury and damage by reason of the foul odors generated, and the noise and disturbance created, which rendered their life uncomfortable, their premises unfit for habitation, and prevented them from enjoying a good night's sleep and rest. The prayer was that defendant be enjoined from continuing to operate a dog kennel on her property. Defendant in her answer admitted that she kept at her residence, '* * * certain dogs for the purposes of breeding, raising and selling the same * * *'; challenged the validity of the city's ordinances; denied the remainder of the pertinent allegations of plaintiff's petition; and alleged that she had been required to engage the services of an attorney to defend herself, and prayed that the action be dismissed and that she be allowed a reasonable sum for attorney fees and suit money.

At the conclusion of the hearing the court entered a judgment and decree in which it found that defendant 'has been operating her premises as a private nuisance' and ordered her 'enjoined from maintaining a dog kennel and from keeping, raising, breeding, and housing dogs in excess of one in number on her premises * * *.' By implication, at least, the court denied the city relief on its claim that defendant was maintaining a public nuisance. Only the defendant has appealed, and we will therefore treat the action as do the parties, that is, one for the abatement of a private nuisance.

Defendant urges that the trial court erred: (1) in finding a nuisance when such a finding is not supported by the facts or the law; (2) in granting an injunction because plaintiffs were barred by the statutes of limitation, and by laches; and (3), in granting an injunction which enjoined defendant from keeping more than one dog. Since this is an equitable action we are required to '* * * determine the cause de novo, weigh the competent evidence introduced upon the factual issues, and reach our own conclusions based upon that evidence, although we defer to the finding of the trial court where there is conflicting oral testimony involving a determination of the credibility of witnesses who appeared before it. * * *' Mintert v. Gastorf, Mo., 417 S.W.2d 101, 105.

Defendant's property, located in the City of Fredericktown, is known and numbered as 408 Franklin Street, which we gather from the testimony runs in an east and west direction. Plaintiffs alleged and defendant admitted that her parcel of land was approximately 100 feet wide by 200 feet deep, and defendant testified that her backyard, in which she kept her dogs, was 100 feet in width by 150 feet in depth. The yard is surrounded by a wire fence, built 4 or 5 years previously to replace an older one, and contains 4 or 5 little dog houses and 2 small wire pens constructed because, defendant related, she had a couple of little dogs that would slip through the outside fence. The yard is not paved, and there was a conflict in the testimony as to whether the surface of it was bare dirt or whether, in whole or in part, there was sod on it for a part of the year. Defendant conceded that the pens were bare dirt at all times.

Eleven witnesses appeared on plaintiffs' side of the case, of whom nine, including plaintiffs, lived in the immediate neighborhood of defendant. Twenty witnesses appeared on defendant's side, of whom nine, including defendant and her son, likewise lived in the immediate neighborhood. By the words 'immediate neighborhood' we mean in the same square block in which defendant resides, or in the corresponding block on the opposite side of Franklin Street, and to better understand their proximity to defendant's property we have prepared from the testimony a plat showing the location of each neighbor. The home of plaintiffs, the Gilletts, numbered 412 Franklin Street, adjoins the defendant's property on her east side and the dog pens and dog houses are located within 18 to 20 feet of their bedroom and kitchen. The property on the west side of defendant's was acquired in July, 1965 by Charles Finch, and occupied by him and his wife from November 11, 1965, until a week before the trial. Their kitchen, Finch testified, was approximately ten feet from defendant's yard where she kept her dogs. Reverend and Mrs. Sheppard's home, numbered 411 E. College, is located directly to the north of defendant's premises and separated from it by a narrow alley.

The evidence established beyond any reasonable doubt that the business operated by defendant is located in a residential neighborhood. In fact, all of the witnesses, defendant's as well as plaintiffs', who were asked to characterize the immediate area expressed the opinion that it was a residential neighborhood. Nor is there any dispute about the nature of the business operated by defendant on her premises. As stated, she admitted in her answer, and also testified, that she was in the business of breeding, raising, and selling dogs. While there was some slight conflict in the testimony concerning the number of dogs on hand at any given time, including at the time of trial, defendant conceded that she had had as many as 30 dogs and an inference may be drawn from the testimony of her son, William, that the maximum number may have been as great as 35. The types of dogs kept, bred and raised by defendant during the 4 or 5 years preceding the trial, according to the evidence, included Pekinese, Boxers, German Shepherds, Poodles, Beagles, Bassetts, Dachshounds, and Spitz.

Whatever their precise number, we believe it is obvious that the backyard in which defendant kept her dogs was small in relation to the number on hand, and that the homes of plaintiffs and the Finchs on the adjoining lots were in close proximity to the area in which the dogs were maintained. Under those circumstances we could take judicial notice of the ordinary habits, characteristics and instincts of dogs, and the likely effect on defendant's immediate neighbors, Lloyd v. Alton R. Co., 348 Mo. 1222, 159 S.W.2d 267; Mitchell v. Newsom, Mo.App., 360 S.W.2d 247, but in this case we need not do so for a careful review of the record has convinced us that the overwhelming weight of the evidence, much of it from defendant's own witnesses, abundantly supported plaintiffs' complaints regarding the noise, odors, unsanitary conditions, and other objectionable features resulting from the operation of defendant's business. Understandably, considering the nature of dogs, neither defendant nor any of her witnesses testified that the dogs never barked. In fact, several observed, as did her witness Verna Stanfield, that 'All dogs bark.' Defendant herself testified that her dogs barked if someone went through the alley or when her neighbor (unnamed) turned his dog out and it would run up and down the fence. There was testimony that when one dog barked all did so. As might be expected, in the main the reaction of the residents of the immediate neighborhood to the noise varied according to their proximity to defendant's property. Charles Finch, an adjoining neighbor, related that the dogs barked nearly every time he stepped out of his back door, and both he and his wife testified that the dogs also barked at night and so disturbed them that they were unable to sleep. Reverend and Mrs. Sheppard stated that the dogs frequently barked, and that the noise was particularly noticeable in the summer. Mrs. Ruth Moore, who resides two doors east of defendant, said that the barking occurred at night as well as during the day, and that it prevented her from sleeping and getting her rest at night. Plaintiff Frank E. Gillett stated that the barking frequently awakened him and his wife 5 to 7 times a night with the result that they were a bundle of nerves, and on numerous occasions had left their home to get a good night's sleep. Mrs. Gillett described the barking as 'terrific' both day and night, and testified that in addition to disturbing their rest it had prevented their use of their backyard the preceding summer because when they tried to use it the dogs would gather at the fence and bark.

Regarding plaintiffs' complaint of odor, the conflict in the testimony was not so much whether an odor was generated as its extent and degree. There was no dispute about the fact that the dogs satisfied their natural needs by eliminating in defendant's backyard. Defendant testified that she gathered up the excrement once each day and buried it with lime in her backyard, but conceded that such body waste was not odorless and that it remained on the ground for some period of time because she was not out there all of the time. Dr. Meador, defendant's veterinarian, who testified on her behalf, stated on cross-examination that there was an odor connected with a dog's body waste, as did her son William. Reverend Sheppard said that the odor emanating from defendant's premises was so bad that they couldn't entertain in their backyard, and Mrs. Sheppard related that when she tried to...