Crabtree v. City Auto Salvage Co.

• Decision Date: 01 April 1960
• Citation: 47 Tenn.App. 616,340 S.W.2d 940
• Parties: Charles R. CRABTREE et al. v. CITY AUTO SALVAGE COMPANY.
• Court: Tennessee Court of Appeals

Page 940

340 S.W.2d 940

47 Tenn.App. 616

Charles R. CRABTREE et al. v. CITY AUTO SALVAGE COMPANY.

Court of Appeals of Tennessee, Middle Section.

April 1, 1960 Certiorari Denied by Supreme Court Sept. 9, 1960.

F. Clay Bailey, Jr., Nashville, for plaintiffs.

Charles L. Cornelius, W. Ovid Collins, Jr., Nashville, for defendant.

SHRIVER, Judge.

I

The complainants below, Charles R. Crabtree, et al., are appellees here, while City Auto Salvage Company, is the appellant, however, the parties will be referred to as complainants and defendant as they appeared in the Court below.

Counsel for defendant in their brief and argument state that this appeal presents the following basic question;

'Is the operation of defendant's automobile salvage business shown by the proof to be necessarily so offensive and injurious to complainant's health, comfort and safety and the enjoyment of their property, as to require its absolute abatement as a nuisance?'

Counsel for defendant further state that they emphasize the word necessarily because, even if there were proof of a nuisance, the Chancellor was bound to determine whether the defendant's operation could be modified or restricted so as to afford complainants relief, without resorting to the harsh remedy of mandatory injunction requiring the defendant to close its business and remove all automobiles and other property from the premises within 120 days, as was decreed below.

The complainants Charles R. Crabtree, et al., filed their bill on behalf of themselves and all other residents of the 12th Civil District of Davidson County similarly situated, alleging that they live in a residential area in said district, composed of two sub-divisions named therein, located just off the Dickerson Road, which subdivisions have been built up in the last few years with residences of complainants and those in whose behalf the suit is brought.

It is alleged that the defendant corporation purchased a lot on Dickerson Road composed of approximately 15 acres lying Eastwardly from the said road and that said corporation began business on or about the first of May 1957 with a few wrecked automobiles close to the main building of the company on the Dickerson Road but, thereafter increased the number of automobiles on said lot until the area was about three fourths filled with wrecked cars of all makes and kinds.

It is further alleged that the defendant was engaged in hauling wrecked automobiles to their premises for storage and removing parts therefrom by wrenches, hammers and acetylene torches, burning tires, grease and oil causing noxious odors and smoke as well as creating much hazard from fire. That such noises accompanying the bringing in of wrecks, working over them hammering and cutting out parts, the burning of grease etc. destroyed the peaceful esthetic charm of a well-kept restricted residential area by piling in its very midst a graveyard of rusty, blackened remains of junked automobiles, which amounts to a private and public nuisance, in fact, depriving complainants of the peaceful, tranquil and rightful use of their property, as well as destroying the sales and rental value thereof.

The bill prays for an injunction to restrain and prohibit the defendant, its agents and employees from bringing into or on its property any wrecked automobiles for storage and that an injunction issue to restrain and prohibit the defendant from maintaining, operating or using its property for an automobile salvage operation; that the business be declared a nuisance and abated, allowing the defendant a reasonable time to process the wrecked automobiles on hand and clear all refuse away at its own expense, and for general relief.

The answer denies the material allegations of the bill and, among other things avers that the homes of the complainants and the others located in these sub-divisions were built, for the most part, long after the Davidson County, Planning Commission had made its report to the July Term, 1940, of the Quarterly County Court and after the Magistrates representing the 12th Civil District in the Quarterly County Court joined with the Magistrates from the rest of the County in voting to exclude the 12th District from all zoning regulations, with the result that the 12th Civil District including the area involved here, has not been subjected to any zoning regulations.

And it further avers that the present suit is an effort on the part of a few citizens of the 12th Civil District to zone that part of the District without legislative aid.

The answer also avers that there are numerous business establishments, including two other salvage yards, in the area along the Dickerson Road where defendant's business is located.

The cause was heard before the Chancellor on oral testimony and resulted in an oral opinion which was transcribed and put in the record, followed by a decree in which the Chancellor found certain facts as follows;

That in April 1957 the defendant, City Auto Salvage Company, purchased a tract of land in the 12th Civil District of Davidson County containing approximately 15 acres described in the pleadings, to be used as an automobile salvage yard; that the property fronts about 200 feet on the East side of the Dickerson Road and runs back between lines some 1700 feet abutting the rear property lines of residential property located on the North side of Gordon Terrace, the West side of Woody Hill Drive, and the South side of Dellway Drive; that the residences in the area are moderately priced with well kept lawns, including shrubbery and trees, the appraised value of which varies from $7,500.00 to $14,000.00; that many wrecked automobiles are now on the salvage yard and defendant's officers stated that it was their intention to fill the 15 acre tract with wrecked automobiles; that the defendant's business is an industrial operation, highly unsightly to the neighborhood, creating much noise, dust, smoke, stench, odors and greatly lessening the private, peaceful enjoyment of said home-owners and seriously depreciating the sale and loan value of their property; that said salvage operation is of no benefit to the community; that its sales and services are made primarily to insurance companies, automobile dealers, and other slvage yards; that the operation of defendant's Salvage Yard is an actionable nuisance and should be permanently enjoined from its operation in the area above described.

The decree then proceeds;

'It Is, Therefore, Ordered, Adjudged And Decreed, by the Court:

'1. That the operation by the defendant of an automobile salvage yard upon the area hereinabove referred to and described is an actionable nuisance.

'2. Effective 20 days after the entry of this decree, the defendant, is agents and employees are hereby enjoined from bringing into and on the hereinabove described property wrecked automobiles.

'3. That the defendant, its agents and employees be, and they are hereby, enjoined from maintaining, operating or using its hereinabove described property for an automobile salvage operation. However, the injunction granted in this paragraph shall not be effective until 120 days after the entry of this decree, this being deemed a reasonable time by the Court within which to permit the defendant to liquidate its business and remove the wrecked automobiles and other refuse from the premises above referred to and described.

'4. Defendant will pay the costs of this cause.'

To the foregoing action the defendant excepted and perfected an appeal and has assigned errors.

II

The Assignments of Error are as follows;

'1. The Chancellor erred in finding defendant's operation to be a nuisance.

'This was error because the preponderance of the evidence is to the contrary.

'2. Even if there were evidence of a nuisance the Chancellor erred in precipitously terminating defendant's business by mandatory injunction instead of merely restraining the alleged offenses.'

III

The proof shows that early in 1957 when the defendant decided to enter the automobile salvage business, its owners examined property in many sections of Davidson County in an effort to find a suitable location for the business. After going to the Davidson County Court House and soliciting information from the County Planning and Zoning Commission and the County Court Clerk's office, the site in question was chosen because it was discovered that there were no zoning regulations in that area to prevent the location of such a business there and because there are two other automobile salvage yards in the immediate vicinity on the Dickerson Road and it was thought that customers seeking parts for automobiles would be, thus, encouraged to go there.

Dickerson Road is a four-lane through U. S. Highway connecting Nashville with points North and carries very heavy traffic of all kinds, both day and night.

Immediately North of defendant's tract is an unfinished basement residence and a large building occupied during 1956 and 1957 by the Utilities Construction Company, which stored and repaired heavy equipment used in erecting utility poles. This lot extends back from the highway to a depth of 520 feet. Defendant's witness, Mrs. Winifred W. Foster, who lives on this property at 2535 Dickerson Road, stated that she and her family had lived there about 14 years and that up until about a year ago the Utilities Construction Company had rented it. She stated that it was about the worst looking place on the highway because they had all kinds of equipment stored on it and they repaired their trucks there. This property extends behind the first residence on Dellway Drive and, at the time she testified, there was equipment on the back of the lot, including trucks, and Mr. Foster and a man with whom he is associated have salvage stored on the property which they buy from Camp Campbell and Sewart Air Base and other places and this operation has been going on for the last several years. She testified that Cain-Sloan has ...