City of Somerset v. Sears

• Decision Date: 27 October 1950
• Citation: 313 Ky. 784
• Parties: City of Somerset et al. v. Sears et al.
• Court: United States State Supreme Court — District of Kentucky

313 Ky. 784

City of Somerset et al. v. Sears et al.

Court of Appeals of Kentucky.

October 27, 1950.

W.E. Sears and others brought suit against the City of Somerset and others to enjoin city officials from issuing a permit for drive-in theatre in city, and to enjoin the construction or operation of drive-in theatre. The Pulaski Circuit Court of Pulaski County, R.C. Tartar, J., rendered a judgment in favor of the plaintiffs, and defendants appealed. The Court of Appeals, Clay, C., held that the theatre did not constitute a nuisance and that its construction could not be enjoined.

Judgment reversed with directions to dismiss petition.

1. Pleading — Demurrer by defendants to petition of plaintiffs admitted the facts well pleaded in the petition, but not the legal conclusions.

2. Nuisance — "Nuisances" are that class of wrongs arising from the unreasonable, unwarrantable, or unlawful use by a person of his own property and producing such material annoyance, inconvenience, discomfort, or hurt that the law will presume a consequent damage.

3. Nuisance — When proposed business is not unlawful, the essential elements of a "nuisance" are the unreasonable use of property causing material annoyance, inconvenience, or discomfort.

4. Nuisance — Where it is sought to enjoin an anticipated nuisance, it must be alleged and proven that the proposed construction or use to be made of the property will be a nuisance per se, or that a nuisance must necessarily result from the contemplated act or thing.

5. Nuisance — In suit by property owners to enjoin city officials from issuing a permit for proposed drive-in theatre and to enjoin construction or operation of theatre, controlling consideration was whether facts showed clearly that a material invasion of rights of property owners would necessarily result from operation of proposed theatre, and it was not enough that the activity might result in inconvenience, or annoyance, or that it might make the homes of the property owners less desirable places in which to live.

6. Nuisance — One property owner has the right lawfully to use his premises as he sees fit without such use being enjoinable as a nuisance, unless such use will necessarily constitute an unreasonable invasion of his neighbor's rights.

7. Nuisance — A drive-in theatre which was proposed to be erected in residential subdivision of city, which was to have "in-the-car" loud speakers and concession stand and rest rooms, and which was to accommodate a maximum of 400 automobiles, was not a "nuisance," and its construction and operation could not be enjoined in suit by owners of residences in the neighborhood. Sam C. Kennedy, Joe E. Caylor, and Smith & Leary for appellants.

Smith & Blackburn for appellees.

Before R.C. Tartar, Judge.

CLAY, COMMISSIONER.

Reversing.

This is an appeal from a judgment permanently enjoining the officials of Somerset from issuing a permit to the Somerset Drive-In Theatre Company, and permanently enjoining that company from constructing or operating a proposed drive-in theatre in the city.

Appellees are residential owners who live near the proposed site of the theatre. Their pleadings allege that the City Board of Council will grant a permit to the appellant company under an ordinance providing therefor. They further allege: the site of the proposed theatre grounds is in a quiet residential subdivision of the city somewhere near a hospital; the proposed operation will accommodate 400 automobiles; that the lights, crowds, conjestions, and noises would constitute a nuisance, would depreciate the value of their property, would be injurious to the health of those residing in the community, and would destroy the quiet and peaceful use and enjoyment of their homes. Appellants, having elected to stand on their demurrer to appellees' petition as amended, admit the facts well pleaded, though of course they do not admit the legal conclusions.

The decision of the Chancellor appears to have been based on the ground that the permit which the city officials proposed to issue was illegal and void because it would constitute the grant of a special privilege. We do not think it necessary to go into the ramifications of this question because it does not affect the merits of the controversy. If such a permit was void, then the company could go ahead with the construction and operation of its theatre without a permit, since there are no zoning or other regulations of the city which restrict the use of the company's property. If it is a valid permit for certain purposes, then the company would have the necessary authorization.

The real issue in the case ...