Clabaugh v. Harris

• Decision Date: 04 March 1971
• Docket Number: No. 243579,243579
• Citation: 27 Ohio Misc. 153,56 O.O.2d 407,273 N.E.2d 923
• Parties: , 56 O.O.2d 407 CLABAUGH et al. v. HARRIS et al.
• Court: Ohio Court of Common Pleas

Page 153

27 Ohio Misc. 153

273 N.E.2d 923, 56 O.O.2d 407

CLABAUGH et al. v. HARRIS et al.

No. 243579.

Court of Common Pleas of Ohio, Franklin County.

March 4, 1971.

Robert R. Shaw, Columbus, for plaintiffs.

Thomas E. Palmer, Columbus, for defendant B. G. Davis, Inc. et al.

Charles R. Andrews, Columbus, for defendant Harris.

WILLIAMS, Judge.

Plaintiffs have filed a complaint for injunction, temporary and permanent, to restrain and enjoin each of said defendants from continuing trucking activities during the hours of the late night season and early morning. The motion for consolidation of the hearing on the preliminary injunction with the trial on the merits was granted.

The evidence and testimony have disclosed that the plaintiffs are rrsidents of a farm community, some of whom have lived on their farms from thirty to fifty years; that they are the owners of their properties; that the defendant Davis, is a general contractor on Project 614, Franklin County I-70, which includes the relocating of U S. Route 33 in the Grandview Heights area; that the defendant, Bellevue Trucking Company, is a subcontractor to truck gravel from the Franklin Gravel Pit, 5500 Lockbourne Road to the project.

The evidence further disclosed that weather permitting, the defendants pursuant to the contract haul in large gravel trucks on two ten-hour schedules or twenty hours per day, full loads of gravel on the roads where some plaintiffs reside and return empty on roads where other plaintiffs reside; that the operation of the turcks produces gigh extreme of noise and vibration to the windows, weather stripping and buildings of the plaintiffs; that the noise, particularly in the late hours of the night season and early morning hours prevents and disrupts the sleep of the residents of the community.

The quantity of fill material to be hauled exceeds one million cubic yards. This fill must be completed in June of this year. Due to the quantities involved, a large number of trucks must work two shifts, one at night and one in the early morning, to complete the job within the schedule spelled out by the State of Ohio Department of Highways and the city of Columbus.

Because of heavy traffic conditions on Route 33, near the terminus of the haul, no hauling is done between 4:00 p. m. and 7::00 p. m. Also, no hauling is done on Saturdays and Sundays. On a twenty hour per day basis, 73 working days are required to complete this phase of the work. Based on a five day work week, it could be completed no sooner than June 8, 1971, which immediately puts the contract behind schedule.

To switch to two shifts of eight hours each would cost defendants an additional $202,000.00, and would be virtually impossible because of the traffic conditions on Route 33 during the early evening hours.

The project itself is a result of the federal legislation concerning the so-called 'Inter-State Highway' system, and is, in effect, a combined effort of the national, state and local levels of government. There is little doubt that such a system is necessary and everyone enjoys the benefits therefrom to a greater or lesser degree, depending upon his use of the finished product.

The situation here presented was not the result of neglect, delay or wrongdoing on the part of the defendants, but rather on the part of the various levels of government. The enabling legislation, at all levels, could very well have spelled out working restrictions with regard to working hours, etc. But it did not. Rather it would appear that such time schedules have been forced upon the defendants in this matter as to require their working in the present manner.

The question therefore, is whether the conduct of the defendants in the operation of the trucks, in compliance with a contract with the state of Ohio, constitutes a nuisance and health hazard to the residents of the community to a degree that said residents are entitled to temporary relief from said truck opertion.

The rule of equity to entitle a party to injunctive relief requires that his rights must be clear; the nuisance must be clearly established; the legal rights of the complaining party must be shown to have been affected by the nuisance to a substantial degree; and the injury alleged must be irreparable.

Nuisance is a difficult concept to define. It cannot be defined so that a standard rule will fit all cases. 41 Ohio Jurisprudence 2d 98, Sec. 9, et seq. For the very concept of a 'nuisance' requires a definition which is responsive to many circumstances.

It is important to examine the distinction between what the law labels as public and private nuisances. Plaintiffs, to properly invoke the jurisdiction of this court, must establish that the problem in question is a private nuisance.

If a whole neighborhood or any considerable number of persons are annoyed, it is a public nuisance. 41 Ohio Jurisprudence 2d 93, Sec. 4; Village of Cardington v. Fredericks, Adm'r, 46 Ohio St. 442, 21 N.E. 766. In general, the law is very clear that private individuals have no right to abate, by injunction, a public nuisance. 41 Ohio Jurisprudence 2d 142, Sec. 54. Such an injunction can only be obtained if their injury is different in kind and degree from that of the general public. State, ex rel. Anderson v. Preston (1963), 2 Ohio App.2d 244, 207 N.E.2d 664. In Richards v. Washington Terminal Co. (1914), 233 U.S. 546, 34 S.Ct. 654, 58 L.Ed. 1088, the United States Supreme Court held that plaintiff, like all other property owners along a railroad right-of-way, was required to bear without redress the amount of noise, vibration and smoke incident to the running of the trains. Similarly, the Supreme Court of Ohio denied recovery with respect to the noise, smoke, vapor, and other discomfort arising from the ordinary use of a railroad. The court noted that 'the occupant and owner of a lot and dwelling house adjoining the right-of-way has no more right to recover damages of the company than any citizen who resides or may have occasion to pass so near the railroad as to be subjected to like discomfort.' Parrot v. Cincinnati, H. & D. Ry. Co. (1858), 10 Ohio St. 624.

In a case involving the attempted enjoining of the operation of trucks and buses on the New York Thruway during nighttime hours, a court found that the plaintiffs had no right to redress. The court noted that the noises emanating from the normal operation of the thruway did not adversely affect the plaintiffs more than any other property owner similarly situated, and that such noises did not subject plaintiffs to a greater share of the common burden of noise cast upon all those living in the vicinity. Mathewson v. New York State Thruway Authority (1960), 11 A.D.2d 782, 204 N.Y.S.2d 904, aff. 9 N.Y.2d 788, 215 N.Y.S.2d 86, 174 N.E.2d 754 (1961).

In their complaint, plaintiffs do not allege the Franklin Gravel Pit is a nuisance, or even that the operation of the gravel pit at night is a nuisance. Rather, liability is asserted solely on the use of trucks running at night on the public highways. It is clear there is no cause of action in such an instance in the state. 'The primary and paramount use of highways and streets is for the purpose of...