Fredal v. Forster

• Decision Date: 08 December 1967
• Docket Number: No. 2,1494,Docket Nos. 1261,2
• Citation: 156 N.W.2d 606,9 Mich.App. 215
• Parties: Dr. Joseph FREDAL and Frances Fredal et al., Plaintiffs-Appellees, v. Leonard FORSTER, John Lubbers and Arthur Oswald, Individually and as copartners, d/b/a A & J Sand Co., and John Migut, d/b/a General Sand Co., Defendants-Cross-Plaintiffs-Appellants, v. Loren E. EVANS, Mae E. Stecker, Jack B. Millard, Floyd Parrot, Walter B. Ochinsky and Odilon Houtekier, Clifton Pemberton, John Migut, d/b/a General Sand Co., Cross-Defendants-Appellees
• Court: Court of Appeal of Michigan — District of US

Page 606

156 N.W.2d 606

9 Mich.App. 215

Dr. Joseph FREDAL and Frances Fredal et al., Plaintiffs-Appellees, v. Leonard FORSTER, John Lubbers and Arthur Oswald,

Individually and as copartners, d/b/a A & J Sand

Co., and John Migut, d/b/a General Sand

Co., Defendants-Cross-Plaintiffs-Appellants, v. Loren E. EVANS, Mae E. Stecker, Jack B. Millard, Floyd

Parrot, Walter B. Ochinsky and Odilon Houtekier,

Clifton Pemberton, John Migut, d/b/a

General Sand Co.,

Cross-Defendants-Appellees.

Docket Nos. 1261, 1494.

Court of Appeals of Michigan, Division No. 2.

Dec. 8, 1967.

Released for Publication March 1, 1968.

Rehearing Denied Feb. 16, 1968.

The plaintiffs are 20 neighboring property owners ¹ and the township in which the quarry land is located. Operation of the property as a quarry site was permanently enjoined by judgment of the trial court and defendants appeal from that order.

A second case arising out of the same proceedings is consolidated on this appeal. The basis of that appeal is the combination counter-claim and cross-claim filed in the trial court by defendants, Forster, Lubbers, and Oswald alleging conspiracy. The sole issue on the combination counter- and cross-claim is the propriety of the allowance of reasonable attorney's fees for allegations which the trial court found to have been unwarranted.

The record reveals that defendant Leonard Forster was the owner of the southeast 1/4 of section 18, township 3 north, range 12 east, situated within Shelby township. He inherited this parcel in 1934 and since that time has quarried portions of the parcel through various licensees and lessees. A number of these licensees or lessees were made defendants along with Forster; John Lubbers and Arthur Oswald, individually and as copartners, doing business as A & J Sand Co.; William Gritzinger, Sr., and William Gritzinger & Son; and John Migut, business as General Sand Co. Gritzinger & Son and General Sand Co. were subsequently dismissed as defendants.

Plaintiffs alleged that the quarry operation was a public nuisance, as a violation of the Shelby township zoning ordinance, art. 17, § 17.02, and therefore a nuisance Per se ² as well as a private nuisance. They sought injunctive relief and rehabilitation of the land in controversy. A preliminary injunction issued enjoining sand and gravel operations on the described property. Motions by defendants to dismiss and for rehearing in regard to the preliminary injunction were denied. Additional defense motions to separate the township plaintiff from the other plaintiffs into separate suits for trial, or to dismiss the action as to either of them, as well as defense demand for jury trial, were denied.

By counterclaim, defendants Forster, Lubbers, and Oswald claimed damages against the individual plaintiffs based on an allegation that plaintiffs' misrepresentations caused the preliminary injunction to issue. They also proceeded against plaintiff Shelby township and cross-defendant Migut for an alleged illegal conspiracy to put the countercomplainants out of business for the benefit of Migut. It appears that these allegations were based upon the township's grant to Migut of permission to quarry at another site, to the detriment of counter-complainants' business. This combination counter- and cross-complaint was dismissed in toto, and the issue arising therefrom is the aforementioned allowance of costs and attorney fees in favor of John Migut, against Forster, Lubbers, and Oswald, in the sum of $2,696.25.

Since the quarrying operations commenced on defendant's parcel in the 1930's, the use of the property as such has been scattered and sporadic. The trial court referred to the entire parcel as if it were divided into quarters in making its determination as to the use thereof. Although such division is arbitrary, we employ it here solely as an aid to visualization.

As to the NW 1/4 of the SE 1/4, from 1930 to 1960 some quarrying was conducted by Ray Industries. The court found this site to have been abandoned in 1960 or 1961.

As to the NE 1/4 of the SE 1/4, in the 1956--1957 period a 2-acre quarry site was established during which time defendant Gritzinger & Son removed some 45,000--50,000 cubic yards. In 1958, one Wineberger removed approximately 6,600 cubic yards.

As to the SE 1/4 of the SE 1/4, in this area, particularly the southernmost 25 acres, a large operation (apparently the bulwark of defendant's business) was established, which continued until the time of this suit.

The record does not establish that any use was commenced in the SW 1/4 of defendant's parcel.

In 1953, defendant's entire quartersection was zoned residential. The following year however, a nonconforming use was granted by Shelby township Ordinance No. 13 (1954) which rezoned the entire parcel industrial and provided for its use as a quarry site. ³ As set forth above, considerable quantities of sand and gravel have been extracted from the parcel subsequent to the ordinances of 1953 and 1954.

In 1958, the area immediately contiguous to the north, on the easterly side of defendant's property, was subdivided into the Country Lane Estates, in which the individual plaintiffs purchased homes. The situation as it then existed was that the Estates was zoned residential and defendant's property was zoned for nonconforming quarrying purposes. Physically, as the evidence established, the northeasterly portion of defendant's parcel was not then being used for quarrying purposes as far as any of the plaintiff homeowners could visually discern. There was testimony to the effect that this portion of defendant's property appeared to be agricultural, with a barn, livestock, and farm equipment within view of the plaintiffs' homes.

Shelby township, in 1963, rezoned defendant's property to residential. Quarrying was to be permitted only by application to the township board, and only under certain specified conditions. Admittedly defendant has not acquired a permit nor sought permission to conduct a quarrying operation.

The event which triggered this present litigation occurred in the fall of 1964. At that time A & J Sand Co., and General Sand Co., pursuant to an agreement with Forster, began a large scale quarrying operation in the northeast section of defendant's property. Cranes, trucks, and other equipment were moved into the area. A similar operation was simultaneously commenced in the southeasterly section. The homeowners alleged that large quantities of dust were caused to blow onto and into their homes, that unreasonably loud noises were created and that defendant's ground-breaking equipment caused their very foundations to shake. They also complained of odors emanating from stagnant ponds created in the quarry pits, of an attractive nuisance to children in the area, and that the general area of operation was unsightly.

Charged with great emotionalism on all sides, a 10 day trial ensued which resulted in a court order which enjoined quarrying operations on this property except as to the southeasternmost 25 acres.

The court below described the various mining activities which occurred prior to October 1964 as of such a minor degree as to constitute no private nuisance. As to the activities complained of here, which occurred subsequent to October 1964, the court found that the character and magnitude of these mining operations, the manner of conducting them and the noise and dust produced thereby constituted a private nuisance. The court found the proofs as to private nuisance 'positive, clear and credible'.

The court further found a public nuisance in all areas of the SE 1/4 of section 18, except the southerly 1,200 feet of the property. Here the court found a legal nonconforming use. ⁴ The court stated that its decision was based on Township of Farmington, Oakland County v. Scott (1965), 374 Mich. 536, 542, 132 N.W.2d 607, wherein the Court held that a legislature may determine that a violation of a township ordinance is a nuisance Per se without showing that anyone was hurt by its violation. The trial court found here that as nonconforming use had been abandoned or not established except in the 1,200-foot area described, the remainder of the property was subject to the terms of the existing ordinance rather than excepted therefrom. Defendants contended below, as they do here, that a nonconforming use has been established as to the entire tract.

In reviewing the use as it existed at the time of enactment of the 1963 ordinance, the trial court found that operations in the northwesterly section had been abandoned in 1960 or 1961. It also found that the use in the northwesterly section was 'small' and was not established prior to enactment. Both of these latter findings are challenged in this Court and shall be dealt with in place.

Before reaching the substantive issues, we shall answer the procedural questions raised by appellants. They claim: (1) an improper joinder of the private plaintiffs with the public plaintiff, and (2) error in denying their demand for a trial by jury.

We find no merit in either of these contentions.

The rule covering joinder is GCR 1963, 206.1, which provides:

'All persons may join in 1 action as plaintiffs

'(1) if they assert any right to relief jointly, severally, or in the alternative, in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action; or

'(2) if it appears that their presence in the action will promote the convenient administration of justice.

'All persons may be joined in 1 action as defendants

'(1) if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action; or

'(2) if it appears that their presence in...