Fillmore City v. Reeve, No. 14697
| Court | Utah Supreme Court |
| Writing for the Court | CROCKETT; ELLETT |
| Citation | 571 P.2d 1316 |
| Decision Date | 31 October 1977 |
| Docket Number | No. 14697 |
| Parties | FILLMORE CITY, a Municipal Corporation, Plaintiff and Appellant, v. Thomas A. REEVE and Alda E. Reeve, Defendants and Respondents. |
Page 1316
Appellant,
v.
Thomas A. REEVE and Alda E. Reeve, Defendants and
Respondents.
Page 1317
Dexter L. Anderson, Fillmore, for plaintiff and appellant.
Eldon A. Eliason, Delta, for defendants and respondents.
CROCKETT, Justice:
Fillmore City brought this action to abate and enjoin an alleged nuisance created by the defendants in keeping pigs and cattle and horses on premises at the edge of and partly within its city limits where the zoning was only for residential use. Defendants denied the charge of nuisance and affirmatively alleged a right to keep livestock on the premises because of a prior established non-conforming use, which was expressly exempted by the zoning ordinance. 1
On November 11, 1974, at a hearing on an order to show cause why a preliminary injunction should not be issued, the parties entered into stipulations that if injunctive relief was granted and if the defendants' claim of non-conforming use was later found to be valid, the defendants would be entitled to damages resulting from their compliance with the order. They further stipulated that a $6,000 bond would be filed by the plaintiff to indemnify the defendants for any damages that would inure to them because of the removal of their livestock. 2 In consequence of the foregoing, the court made an order that the defendants remove their livestock from the premises within fifteen days. The defendants complied and sold their stock, partly by private sale and partly through the Delta Livestock Auction.
At the trial on March 3-4, 1975, evidence was presented that dating back twenty years or more the defendants (or others, including their lessees) had kept varying numbers of pigs, sheep, cattle and horses on the premises. From those facts the court concluded that the defendants had established the claimed non-conforming use. Further, on the basis of the evidence, including that there was nothing abnormally filthy or offensive about the manner of
Page 1318
keeping the livestock, the court also ruled against the plaintiff on its contention of public nuisance.The court having thus found the issues in favor of the defendants as to the keeping of the livestock, proceeded to hear evidence as to the damages suffered by the defendants because they had had to sell their stock in a hurry at forced sale and upon a depressed market, rather than to "feed them out" and sell them when they were in a finished condition and upon a more favorable market. Upon the basis of the testimony of a Mr. Don Evans, who qualified as an expert in the raising and management of livestock, and who testified to the losses thus suffered by the defendants, the trial court computed their loss, plus interest thereon to the time of judgment, totaling the $2,470 he awarded to them.
This appeal is by the plaintiff, Fillmore City. In attacking the judgment it argues that the trial court erred
(1) in finding that the defendant had established a non-conforming use; and in refusing to find that it had kept...
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Mountain States Tel. & Tel. Co. v. Atkin, Wright & Miles, Chartered, No. 18633
...Ariz. 324, 625 P.2d 913 (1980). 23 Junction Irrigation Co. v. Snow, 101 Utah 71, 118 P.2d 130 (1941). 24 Fillmore City v. Reeve, Utah, 571 P.2d 1316 25 See, e.g., Neal v. Green, 68 Wash.2d 415, 413 P.2d 339 (1966). 26 See, e.g., Powers v. Citizens Union Nat'l Bank & Trust Co., 329 F.2d ......
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State v. Rothlisberger, No. 20040745.
...be admissible only under Rule 702"). 55. State v. Bankhead, 30 Utah 2d 135, 514 P.2d 800, 803 (1973). 56. Fillmore City v. Reeve, 571 P.2d 1316, 1319 (Utah 1977); see also Marsh v. Irvine, 22 Utah 2d 154, 449 P.2d 996, 999 (1969) ("When it appears that the determination of an issu......
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Little v. Utah State Div. of Family Services, No. 18113
...and cases cited therein (lack of personal observation no ground for disqualifying expert testimony); Fillmore City v. Reeve, Utah, 571 P.2d 1316 (1977) (objection to expert's lack of first hand knowledge of defendant's operation without merit where testimony was to similar matters); Lamb v.......
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FMA Financial Corp. v. Hansen Dairy, Inc., No. 16528
...but Levie is not a party to this appeal. 2 Robertson v. Hutchinson, Utah, 560 P.2d 1110 (1977); Fillmore City v. Reeve, Utah, 571 P.2d 1316 3 Youngren v. John W. Lloyd Const. Co., 22 Utah 2d 207, 450 P.2d 985 (1969); E.A. Strout Western Realty Agency, Inc. v. Broderick, Utah, 522 P.2d 144 (......
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Mountain States Tel. & Tel. Co. v. Atkin, Wright & Miles, Chartered, No. 18633
...Ariz. 324, 625 P.2d 913 (1980). 23 Junction Irrigation Co. v. Snow, 101 Utah 71, 118 P.2d 130 (1941). 24 Fillmore City v. Reeve, Utah, 571 P.2d 1316 25 See, e.g., Neal v. Green, 68 Wash.2d 415, 413 P.2d 339 (1966). 26 See, e.g., Powers v. Citizens Union Nat'l Bank & Trust Co., 329 F.2d ......
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State v. Rothlisberger, No. 20040745.
...be admissible only under Rule 702"). 55. State v. Bankhead, 30 Utah 2d 135, 514 P.2d 800, 803 (1973). 56. Fillmore City v. Reeve, 571 P.2d 1316, 1319 (Utah 1977); see also Marsh v. Irvine, 22 Utah 2d 154, 449 P.2d 996, 999 (1969) ("When it appears that the determination of an issu......
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Little v. Utah State Div. of Family Services, No. 18113
...and cases cited therein (lack of personal observation no ground for disqualifying expert testimony); Fillmore City v. Reeve, Utah, 571 P.2d 1316 (1977) (objection to expert's lack of first hand knowledge of defendant's operation without merit where testimony was to similar matters); Lamb v.......
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FMA Financial Corp. v. Hansen Dairy, Inc., No. 16528
...but Levie is not a party to this appeal. 2 Robertson v. Hutchinson, Utah, 560 P.2d 1110 (1977); Fillmore City v. Reeve, Utah, 571 P.2d 1316 3 Youngren v. John W. Lloyd Const. Co., 22 Utah 2d 207, 450 P.2d 985 (1969); E.A. Strout Western Realty Agency, Inc. v. Broderick, Utah, 522 P.2d 144 (......