Desruisseau v. Isley

• Decision Date: 01 July 1976
• Docket Number: CA-CIV,No. 1,1
• Citation: Desruisseau v. Isley, 553 P.2d 1242, 27 Ariz.App. 257 (Ariz. App. 1976)
• Parties: Roland R. DESRUISSEAU and Vera Desruisseau, his wife, and Pauline Lester, a single woman, Appellants and Cross-Appellees, v. Guy ISLEY and Mary Ann Isley, his wife, and Isley's Refrigeration, Inc., and Arizona Corporation, Appellees and Cross-Appellants. 2865.
• Court: Arizona Court of Appeals

Page 1242

553 P.2d 1242

27 Ariz.App. 257

Roland R. DESRUISSEAU and Vera Desruisseau, his wife, and Pauline Lester, a single woman, Appellants and Cross-Appellees, v. Guy ISLEY and Mary Ann Isley, his wife, and Isley's Refrigeration, Inc., and Arizona Corporation, Appellees and Cross-Appellants.

No. 1 CA-CIV 2865.

Court of Appeals of Arizona, Division 1, Department A.

July 1, 1976.

Rehearing Denied July 26, 1976.

Review Denied Sept. 9, 1976.

L. Dennis Marlowe, Tempe, for appellants and cross-appellees.

Daughton, Feinstein & Wilson by Donald Daughton and Allen L. Feinstein, Phoenix, for appellees and cross-appellants.

OPINION

FROEB, Judge.

This dispute between two adjoining property owners brought forth a lawsuit for an injunction on the basis that conduct by one owner was an actionable nuisance. This, in turn, produced a counterclaim to quiet title to a nine-foot tract of land in the middle of the two properties. From judgments denying the injunction and quieting title, both parties appeal.

Roland and Vera Desruisseau, appellants and plaintiffs in the trial court, own a five-acre tract of land with frontage of approximately 165 feet on the south side of West Main Street in Mesa, Arizona. Pauline Lester, also an appellant and plaintiff in the trial court, is a mobile home tenant living on the property. For simplicity they are sometimes referred to collectively in our opinion as 'Desruisseau.' Guy and Mary Ann Isley, appellees and defendants in the trial court, own a tract of land of nearly the same dimensions immediately west of the Desruisseau property which also fronts on West Main Street. They are the owners of Isley's Refrigeration, Inc., an Arizona corporation, also an appellee and defendant in the trial court. In this opinion, we refer to them collectively as 'Isley.'

The Desruisseau property is primarily used as a mobile home park. The Isley property is used for the repair and installation of various accessories for motor vehicles, as well as for storage of tools and equipment used in the business.

The land involved here is commercial, zoned C-3 under the City of Mesa zoning ordinance.

Desruisseau presented proof at the trial that intense noise came from the Isley business which interfered with the peace and enjoyment of Desruisseau and the residents living in the mobile home park. The noise resulted from loud speakers, hammering and pounding of metal, sawing, drilling with electric tools and voices 'practically every day and sometimes on Sunday.' There was evidence that residents on the Desruisseau property found the noise 'unbearable' and 'beyond compare,' penetrating their homes even when all windows and doors were closed. Pauline Lester testified that she lost sleep and wages because of the noise and would move if it continued. Desruisseau said he had trouble renting the mobile homes because of the noise. There was also evidence that Isley stored scrap metal, old fuel tanks, secondhand refrigeration units, junk and concrete blocks on the property. In addition to the noise and unsightliness, Desruisseau complained of odors, dog waste, dust, blowing trash and trespassing waters.

Based on this and other evidence, Desruisseau sought a court decree enjoining Isley from further operation of the business on the property unless the noisome conditions were abated. Pauline Lester sought compensatory and punitive damages for the consequences to her from the conduct against which Desruisseau sought an injunction.

Isley, on the other hand, presented evidence generally to the effect that the noise and activity emanating from his property were necessary to the business of repairing and installing accessories on motor vehicles; that his business was, in the scope of its operation, similar to other like businesses with respect to its hours of operation, tools used and noise produced. In addition, there was evidence, which we may take as conclusive, that the operation of the business was in complete conformity with C-3 zoning in the City of Mesa.

There was, of course, considerable evidence presented to the court, beyond what we have described, relating to various aspects of the claims, some peripheral to the ultimate issues involved. Although it would serve little purpose to detail all the evidence here, one subject of exploration was the history of ownership and development of the two properties. Isley had originally operated a business of a similar nature at a different location in Mesa from 1957 to 1968. He then entered into a lease of the property involved here and conducted the business at this location, expanding it over the years. On April 1, 1973, Isley entered into an agreement to buy the property, at which time the Isley business was expanded further. George W. Cameron, Desruisseau's predecessor in interest, had acquired the adjacent property in 1949. At that time the only business on the tract, later acquired by Isley, was a gas station, the property being otherwise used for farming. By 1959, Cameron had developed a mobile home park with 24 units. He was one of the persons signing the petition seeking to have the property rezoned C-3 in 1966, following annexation by the City of Mesa. Desruisseau acquired the Cameron property in May, 1971, and expanded the number of spaces for mobile homes from 24 to 46. He knew that the Isley property, as well as his own, was zoned C-3, and was aware of the nature of the Isley business. The mobile home park has no recreational facilities and all tenants are on a month-to-month tenancy. Desruisseau lives on the property in a residence which has been there since 1950.

The area near to both the Isley and Desruisseau properties is basically commercial in nature, with West Main Street constituting the main artery between the cities of Mesa and Tempe. The street is also designated as State Highway 60-70. To the south is the Southern Pacific Railroad track. In the general area are motorcycle shops, an outdoor theater, a dairy, a manufacturing plant belonging to Motorola, a U-Haul trailer storage lot, a boat sales lot, two bars and an automobile repair shop. There is evidence that at the time rezoning was sought in 1966, the Mesa Planning and Zoning Board concluded that the entire area then being rezoned, including both properties involved here, would ultimately develop as commercial property and that residential uses should be discouraged.

After a lengthy trial the court ruled in favor of Isley and denied the injunction. If the only question on appeal was whether there was sufficient evidence to support the judgment of the trial court, we would affirm without further discussion. It is quite apparent that there was conflicting evidence as to whether the Isley business constituted a nuisance, either public or private. It was the function of the trial court to evaluate the evidence in making this determination. Where there is reasonable evidence to support its conclusion, we will not disturb it on appeal. Aetna Loan Co. v. Apache Trailer Sales, 1 Ariz.App. 322, 402 P.2d 580 (1965). We have said, in such situations, that we will take the evidence in the strongest light in favor of the trial court's decision. Linsenmeyer v. Flood, 1 Ariz.App. 502, 405 P.2d 293 (1965). It follows, of course, that we will not substitute our judgment for that of the trial court. Bud Antle, Inc. v. Gregory, 7 Ariz.App. 291, 438 P.2d 438 (1968).

Desruisseau contends, however, that the determination by the trial court that the Isley business was not a nuisance was based upon erroneous conclusions of law. His argument is that (1) the court believed that mere compliance with C-3 zoning was by itself a sufficient defense against a claim of nuisance, and (2) the court incorrectly interpreted the zoning ordinance.

We do not find that these contentions are borne out by the court's findings of fact and conclusions of law. ¹ On the first issue, the court found that the noise emanating from the Isley property was reasonably related to the business under the circumstances and did not constitute either a public or private nuisance (Finding No. 5). Such a finding and indeed the lengthy trial would have been unnecessary if the court had believed that C-3 zoning was a complete defense. Likewise, the court concluded that Desruisseau failed to carry the burden of proving the allegations of the complaint (Conclusion No. 4) which also negates belief by the court that C-3 zoning was a complete defense. The court Did state, however, that a business activity carried on in compliance with existing zoning regulations will not be enjoined as a nuisance (Conclusion No. 2). We agree that, standing alone, this conclusion is erroneous and thus can be read to support Desruisseau's argument. The conclusion is legally correct as it pertains to a Public nuisance. Green v. Castle Concrete Co., 181 Colo. 309, 509 P.2d 588 (1973); Urie v. Franconia Paper Co., 107 N.H. 131, 218 A.2d 360 (1966); Commerce Oil Refining Corp. v. Miner, 281 F.2d 465 (1st Cir. 1960). It is incorrect as applied to a Private nuisance. ² With respect to the latter, compliance with a zoning ordinance is a persuasive factor in determining the reasonableness of the activity, but it is not conclusive. Dawson v. Laufersweiler, 241 Iowa 850, 43 N.W.2d 726 (1950); Weltshe v. Graf, 82 N.E.2d 795 (Mass.1948). This is based on the principle that a zoning regulation, of itself, involves a determination by a local government as to the reasonableness of land use. Green v. Castle Concrete Co., supra.

Nevertheless, taking into account all of the findings and conclusions made by the court, it is apparent that the court decided the overall question of whether there existed a private nuisance by weighing the facts presented, not by applying an incorrect rule of law. We think Conclusion No. 2 must therefore be interpreted as applying only to the claim of public, as opposed to private, nuisance.

The second contention made by Desruisseau is that the Isley...