Hagaman v. Slaughter

• Decision Date: 27 June 1961
• Citation: 354 S.W.2d 818,49 Tenn.App. 338
• Parties: Jeanette HAGAMAN et al., Complainants, Appellees, v. Arthur P. SLAUGHTER, Defendant, Appellant.
• Court: Tennessee Court of Appeals

Page 818

354 S.W.2d 818

49 Tenn.App. 338

Jeanette HAGAMAN et al., Complainants, Appellees, v. Arthur P. SLAUGHTER, Defendant, Appellant.

Court of Appeals of Tennessee, Eastern Section.

June 27, 1961 Certiorari Denied by Supreme Court Feb. 8, 1962.

Curtin, Haynes & Winston, Bristol, for appellant.

Lyle Burrow, Bristol, for appellees.

McAMIS, Presiding Judge.

Arthur P. Slaughter appeals from a decree enjoining him from operating a junk yard near the residences owned or occupied by complainants.

The bill alleges that defendant was operating a junk yard in such a way as to cause rats and insects, particularly mosquitoes, to breed in large numbers; that defendant's property had become a hazard to children playing in the neighborhood and that the operation of defendant's junk yard had depreciated the value of nearby property. It was charged that defendant's operations constituted an actionable nuisance.

The bill further alleged that defendant's business was being carried on in violation of an ordinance of the City of Bristol providing:

'An ordinance to regulate junk yards within the City of Bristol, Tennessee, in order to prevent their becoming public nuisances and/or menaces to the public health.

'Section I. Be it ordained by the City of Bristol, Tennessee, that all junk yards within the City of Bristol, Tennessee, shall be operated and maintained subject to the following regulations:

'(1) All junk stored or kept in such yards shall be so kept as that it will not catch and hold water in which mosquitoes may breed and so that it will not constitute a place or places in which rats, mice, or other vermin may be harbored, reared or propogated.

'(2) All such junk yards shall be enclosed within close fitting plank or metal solid fences touching the ground on the bottom and being not less than 6 feet in height, such fence to be so built as that it will be impossible for stray cats and/or stray dogs to have access to such junk yards.

'(3) Such yards shall be so maintained as to be in a sanitary condition and so as not to be a menace to the public health or safety.'

Defendant filed an answer denying the factual allegations of the bill except the charge that he had not fenced his property and insisting that since he was not engaged in buying or selling junk but was only storing it on his property his operations are not within the purview of the ordinance, but, if so, the ordinance is unconstitutional and void on the ground that municipalities are without power to regulate junk yards for purely aesthetic reasons.

After a hearing on oral testimony, the Chancellor decreed 'that defendant desist from using the property described in the bill as a junk yard or dump; that he remove all junk and personal property of this nature from the premises within thirty days from this date; and that defendant be enjoined from using said property in the capacity in which it has been used as a dump or junk yard.'

The first assignment complains that the Chancellor erred in holding defendant subject to the ordinance.

We find nothing in the ordinance limiting it to persons who buy and sell junk. Nothing is said about junk dealers. The proscription is against 'junk stored or kept', except in a manner not to offend the provisions of the ordinance. The first assignment is overruled.

Defendant's next insistence is that, if applicable to an operation involving only the storage of junk, the ordinance is unreasonable and unconstitutional. City of Norris v. Bradford, 204 Tenn. 319, 321 S.W.2d 543, is cited as sustaining this insistence.

The opinion in that case as well as the cases there cited clearly hold that it is a proper exercise of the police power for a municipality to forbid the owner of property to use it for a purpose injurious to the safety, health, morals, comfort and welfare of the people. The opinion does hold that the police power of a municipality does not extend to the power to interfere with the normal use of property for purely aesthetic reasons.

A casual reading of the ordinance here involved demonstrates that its aims and purposes are directly concerned with the public health and welfare without regard to the unsightly appearance of junk yards. Under the rule recognized by the case cited and numerous others which could be cited, we must, therefore, hold the ordinance reasonable and a valid exercise of the police power.

The brief for defendant concedes that he has not complied with the ordinance and has stored 'certain old steel, wood, auto tires, and other junk * * * about 25 feet back from the street and across the street from complainants and from most of their witnesses.'

The great weight of the evidence sustains the findings of the Chancellor that the storage of junk on defendant's lot, in addition to becoming an eyesore, has caused mosquitoes and rats in large numbers to congregate and breed there and then cross the street and converge around complainants' homes. The County Health Officer testified that because of the large number of mosquitoes and rats defendant's property has become a health hazard to the neighborhood. There is undisputed evidence that, as a result, property values have depreciated by about twenty-five per cent.

Defendant's final insistence is that his business is lawful and not per se a nuisance and that even if now operated in such a way as to constitute a nuisance the peremptory provisions of the decree should be modified to permit a continuation of his present use of the property by ridding it of mosquitoes and rats.

Defendant's testimony that it is possible to rid the property of rats and mosquitoes is uncorroborated and the fact that he has not attempted to do so must be taken either as creating doubt as to his ability, or his good faith intention to make his property conform to health standards. He says he cannot comply with the ordinance by building a...