Cloer v. Gillespie
| Decision Date | 17 September 1963 |
| Docket Number | No. 40115,40115 |
| Citation | 386 P.2d 1015 |
| Parties | V. U. CLOER and Karma Cloer, husband and wife, Plaintiffs in Error, v. William GILLESPIE, Defendant in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court
1. Generally a person has a right to use his own property for any lawful purpose, provided he does not thereby deprive others of any right of enjoyment of their property which is recognized and protected by law and his use is not such a one as will pronounce a nuisance. For annoyance and injury which are merely consequential on the legitimate use of the property, the law of nuisance furnishes no redress, and the injury is demnum absque injuria.
2. Courts of equity exercise discretionary power in the granting or withholding of their extraordinary remedies, and this is particularly true in a case where injunctive relief is sought. The relief is not give as a matter of course for any and every act done or threatened to the person or property of another; its granting rests in the sound discretion of the court to be exercised in accordance with well settled equitable principles and in the light of all of the facts and circumstances in the case.
3. The dissolution of an injunction, like the granting of it, is largely a matter of judicial discretion, to be determined by the facts of each particular case; and except in cases of palpable abuse of such discretion, or a clear showing of error on the part of the trial court, the reviewing court will not interfere with or in any manner control this discretion.
Appeal from the District Court of Tulsa County; Raymond W. Graham, Judge.
Appeal by plaintiffs from an order of the trial court dissolving a temporary injunction and refusing to make it permanent. Affirmed.
Philip K. Blough, Tulsa, for plaintiffs in error.
Crowe, Thieman & Froeb, Tulsa, for defendant in error.
Upon petition of the plaintiffs presented on the 11th day of October, 1961, the district court of Tulsa County temporarily enjoined the defendant from repairing any automobiles in his driveway; from parking more than one automobile in his driveway; from permitting oil and gas from the driveway to run onto plaintiffs' property; and from using obscene language on the premises.
The plaintiffs in their petition prayed for a temporary injunction and a permanent injunction restraining defendant from maintaining said nuisance for causes reflected by the temporary injunction.
The issues were joined by the answer of the defendant denying generally and specifically the allegations of the petition. At the close of the hearing the trial court denied a permanent injunction.
The parties are next door neighbors in a small home residential district in the City of Tulsa.
Jackson R. Jones, first witness for the plaintiffs testified that he was a private investigator, licensed by the City of Tulsa and bonded by Mid-Continent Casualty Company; that he had been engaged in that business for about ten years. He stated in substance, at the request of Mr. Cloer, he went to Mr. Cloer's home on the 29th of September, 1961, arrived there about 5:10 in the afternoon and stayed until about 10:15 that night. He further testified that when he arrived at plaintiffs' home there were four white males in the back yard of defendant's residence working on a Porche sports car; that at the time there was also an older model Cadillac and two small sports cars on defendant's driveway; that the young men were talking rather loudly and were hammering on steel and some profane and vulgar language could be heard from plaintiffs' bedroom window.
Plaintiffs' witness, Dollins, testified that he was a licensed and bonded investigator employed by Bays Detective Agency; that he went to the home of plaintiffs on October 29, 1961, arriving at 7:30 P.M. and leaving at 9:38 P.M.; that during the time he was there the driveway of defendant was being washed down by a boy and that the plaintiffs requested him 'not to wash that stuff on my yard.' This witness did not know whether the substance used in washing off the driveway was anything other than water. This witness further testified that there was a light in defendant's back yard. Witness did not testify that he heard any loud or profane language.
Plaintiffs' witnesses, Mason and Tate, an employee of the Oklahoma Testing Laboratories and a landscape architect, respectively, testified, in substance, that the washing from defendant's driveway created an oily color line and that this substance would not kill but could damage plaintiffs' trees and cause failure of grass to grow.
The testimony of plaintiff, Mr. Cloer, covers about 60 pages of the case-made the substance of which is that living in their home under the conditions...
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...The discretion of the district court to grant an injunction must be made according to well established equitable principles. Cloer v. Gillespie, 1963 OK 195, ¶ 12, 386 P.2d 1015, 1018. In reviewing the decision, the appellate court will consider and weigh the evidence presented to the distr......
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