Harris v. Skirving, 32003

• Decision Date: 25 September 1952
• Docket Number: No. 32003,32003
• Citation: 248 P.2d 408,41 Wn.2d 200
• Court: Washington Supreme Court
• Parties: HARRIS et al. v. SKIRVING et ux.

Page 200

41 Wn.2d 200

248 P.2d 408

HARRIS et al. v. SKIRVING et ux.

No. 32003.

Supreme Court of Washington, en Banc.

Sept. 25, 1952.

Merkel & Cook, Bremerton, for appellants.

Bryan & Bryan, Bremerton, for respondents.

MALLERY, Justice.

The defendants were about to establish and operate a private garbage dump near the outskirts of the city of Bremerton, in a wooded area designated generally as the Kitsap Lake District. The proposed operation had prospects of considerable magnitude, since the city of Bremerton had ceased the municipal collection of garbage, and the Navy Yard was a prospective customer as well as the inhabitants of the territory surrounding the city.

There are forty-five homes within half a mile of the proposed project and two hundred fifty homes within a radius of one and one-half miles. The area surrounding the proposed garbage dump is wholly residential, there being no industrial enterprises therein.

The defendants had built some roads, and had made other preparations for the operation.

The plaintiffs are residents of the vicinity, and brought an action to secure a permanent injunction against the operation on the ground that it would be a nuisance.

After the bringing of the action, but before the trial, the defendants procured the rezoning of an eleven-acre tract referred to throughout the record as 'Canyon A,' within the property described in the complaint as belonging to the defendants, so that from the beginning of the trial the plaintiffs proceeded upon the sole theory that the proposed operation would be a nuisance in fact, and made no contention that it would be a nuisance per se by reason of being unlawful or in violation of any established zoning rules or other government regulations.

The trial court granted a permanent injunction against the operation on the entire sixty-eight acres. The defendants appeal.

The facts found by the trial court, which the appellants assign as error, are: That the garbage dump would endanger the health of the community by the breeding and spreading of vermin, insects, and rodents; that smoke from the burning operation would collect on Kitsap Lake; that the inhabitants of the Kitsap Lake District would be annoyed and injured by the infusion of odors from the dumping of garbage and the burning of trash and refuse; that the inhabitants would be endangered by the hazard of fire; that the operation would decrease the value and salability of the Kitsap Lake property; and that the general fear and alarm of the residents of the Kitsap Lake District was reasonable and well-founded. It further found that the hauling of garbage past certain homes would be offensive to the inhabitants.

These assignments are argued together, and we dispose of them by holding that the record in this case supports the trial court's findings of fact, excepting that the hauling of the garbage would be a nuisance. This exception avails appellants nothing, however, since the other findings of fact are sufficient to support the judgment.

The appellants further assign as error the finding of the trial court that the respondents had brought the suit as a representative action. Assuming, without deciding that there is merit to appellants' contention, it is still without significance since the respondents also brought the action on their own behalf as well, which they had a right to do. RCW 7.48.210, cf. Rem.Rev.Stat. § 9921; Olsen v. City of Bremerton 110 Wash. 572, 188 P. 772; Bales v. Tacoma, 172 Wash. 494, 20 P.2d 860.

The appellants' assignment of error No. 13 reads:

'The Court erred in assuming that the State or County Health Departments were interested in the establishment of a sanitary land fill beyond their duties of office, which assumption colored the Court's judgment and prevented the Appellants from having a fair trial.'

This assignment of error is predicated upon language the trial court used in its memorandum opinion. It does no more than give the reasons why the court believed some witnesses and not others. We conceive the question raised to be one concerning the credibility of witnesses. Our ruling that the record supports the trial court's findings of fact necessarily carries this contention with it.

The appellants assign as error the inclusion of the entire sixty-eight acres within the purview of the injunction. It may be granted that only eleven acres, 'Canyon A,' had been rezoned at the time of trial to permit appellants' operation.

While an injunction ought not to be unnecessarily large when applied to land, neither should it be too restricted in area to be effective. It seems clear to us that this assignment is not well taken. No part of the entire tract is suitable for a garbage dump. 'Canyon A' is only large...