Durning v. Summerfield
| Decision Date | 09 January 1951 |
| Citation | 235 S.W.2d 761,314 Ky. 318 |
| Parties | DURNING et al. v. SUMMERFIELD et al. |
| Court | United States State Supreme Court — District of Kentucky |
Simeon Jacobs, C. Maxwell Brown, Louisville, for appellants.
Lawrence G. Duncan, Samuel Steinfeld, Louisville, for appellees.
Appellants, R. Lee Durning and Elizabeth Durning, his wife, are owners of a tract of land, approximately 17 acres, having a frontage of 388 feet on the Shelbyville Road, U. S. Highway 60, in Jefferson County. Appellant Louis A. Rice is the General Manager of, and appellant David Endey is the owner of Endey Bros. Shows. From a judgment permanently enjoining them 'from using the land mentioned in the petition or any part of it for a carnival or any of the uses pertaining to a carnival, including erecting show tents thereon, parking trucks and automobiles thereon, using kitchens, mess tents and community or sleeping quarters thereon' appellants appeal.
Appellants maintain: (1) The court erred in overruling special demurrers; (2) the court erred in overruling a general demurrer, and (3) KRS 100.068 permits the continued 'use of land', though that use may be nonconforming.
Title to this tract was acquired by Durning in 1939. The tract was zoned as 'A' one-family residential property by the Louisville and Jefferson County Planning and Zoning Commission in 1943. It was not zoned for carnival or show purposes. Endey Bros. Shows, usually referred to in the evidence as a carnival, consists of some 30 attractions. This 'institution' employs 281 people. It has 'barkers,' loud speakers and amplifiers. The show travels on a railroad train of 80 cars.
The Durning tract has been used chiefly for agricultural purposes. It does not have water or sanitary facilities for carnival purposes. A neighbor describes the entrance of the show upon the tract in the early morning of June 5, 1949, as follows:
Other activities included the arrival of circus trailers, the hammering together of the frame structure for the erection of a mess tent and the erection of a pistol range. The carnival is described as a very large affair, the tract in question being 'very full of equipment.'
No permit for the use of the premises for carnival purposes was obtained from the Louisville and Jefferson County Planning and Zoning Commission. About 11 a. m., June 5, 1949, William C. Beatty, zoning enforcement officer for the Zoning Commission, went upon the premises, found that appellant Louis A. Rice was general manager and in charge of the work being done. Beatty served Rice with a 'stop work order' because no permit had been obtained. Rice declared his intention to disregard this order. Appellees thereupon filed this action in equity setting out the ownership of the tract in question; that it had been zoned on May 10, 1943, and classified in the 'A' one-family residence district in unincorporated territory of Jefferson County; that Louis A. Rice is the general manager of Endey Bros. Shows; that the show or carnival was moved on the property without obtaining a permit as required by KRS 100.075; that the carnival with its attractions is a commercial enterprise not permitted in 'A' one-family residential districts; the refusal of Rice to obey the 'stop work order' and seeking a temporary and permanent injunction.
Appellants maintain that their special demurrer should have been sustained because this action was not brought by the real party in interest. This action was prosecuted in the name of the Louisville and Jefferson County Planning and Zoning Commission, and Jefferson County, by and on relation of Samuel Steinfeld, County Attorney, and Samuel Steinfeld, County Attorney. These parties were primarily interested in the...
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Heilker v. Zoning Bd. of Appeals
...object of the use, rather than the mere conditions or circumstances of the use.") (internal citation omitted); Durning v. Summerfield, 314 Ky. 318, 235 S.W.2d 761, 763 (1951) ("`Use,' in [ordinance provision on nonconforming use] means what is customarily or habitually done or the subject o......
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Hofgesang v. McMakin
...has been considered previously and the claim of nonconforming use here does not meet the requirements set forth. See Durning v. Summerfield, 314 Ky. 318, 235 S.W.2d 761; Feldman v. Hesch, Ky., 254 S.W.2d 914; City of Bowling Green v. Miller, Ky., 335 S.W.2d 893, 87 A.L.R.2d 1, and City of M......
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Ernst v. Johnson County, 93-723
...(1960). An industrial use of land is that use in which members of the trade customarily or commonly engage. Durning v. Summerfield, 314 Ky. 318, 235 S.W.2d 761, 763 (Ct.App.1951). The county and intervenors assert that Ernst and Vulcan failed to establish the quarry as an existing use becau......
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Legrand v. Ewbank
...and patrons. "Use" means what is "customarily or habitually done or the subject of a common practice." Durning v. Summerfield, 314 Ky. 318, 322, 235 S.W.2d 761, 763 (1951). The determination of what constitutes an existing use is made on a case-by-case basis. Perkins v. Joint City-Council P......