Hartford v. Womens Services, P.C.

• Decision Date: 22 November 1991
• Docket Number: No. 89-690,89-690
• Citation: Hartford v. Womens Services, P.C., 477 N.W.2d 161, 239 Neb. 540 (Neb. 1991)
• Parties: Dennis HARTFORD, Appellant, v. WOMENS SERVICES, P.C., Appellee.
• Court: Nebraska Supreme Court

Page 161

477 N.W.2d 161

239 Neb. 540

Dennis HARTFORD, Appellant, v.WOMENS SERVICES, P.C., Appellee.

No. 89-690.

Supreme Court of Nebraska.

Nov. 22, 1991.

Syllabus by the Court

1.Injunction: Equity.An action for injunction sounds in equity.

2.Equity: Appeal and Error.In an appeal of an equity action, this court tries factual questions de novo on the record and reaches a conclusion independent of the findings of the trial court; provided, where the credible evidence is in conflict on a material issue of fact, we consider and may give weight to the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another.

3.Municipal Corporations: Public Officers and Employees: Nuisances.Neb.Rev.Stat. § 14-102(12)(Reissue 1987) vests in public officials of cities of the metropolitan class the power to provide for keeping sidewalks clean and free from obstructions and accumulations.

4.Municipal Corporations: Public Officers and Employees: Nuisances.Neb.Rev.Stat. § 14-103(Reissue 1987) gives the city council of a metropolitan class city the power to define, regulate, suppress, and prevent nuisances.

5.Actions: Injunction: Nuisances: Standing: Proof.In order for a private individual to maintain an action to enjoin a public nuisance, that individual must show that he suffers some peculiar or special injury not common to the general public.A private individual may not maintain an action to prevent or suppress a public nuisance unless that individual will sustain or has sustained some special injury therefrom distinct and different in kind from that which the individual will or does suffer in common with the rest of the public.

6.Equity: Nuisances: Standing.It is a general rule that a public nuisance does not furnish grounds for an action in equity by an individual who merely suffers an injury which is common to the public.The mere fact that a plaintiff uses a street more frequently than others of the public and may suffer more from the alleged nuisance than others does not present a distinct injury.Such plaintiff's injury is the same in character as that which the public will suffer.The only difference is one of degree, and not of kind.

7.Constitutional Law: Injunction.When the facts justify it, injunctive relief may be granted to protect the right of an individual to exercise that individual's first amendment right of free speech.

8.Injunction.An injunction is not wholly a writ of right.

9. Injunction.Injunction is an extraordinary remedy and ordinarily will not be granted except in a clear case where there is an actual and substantial injury; the right must be clear and the damage irreparable.

Peter C. Bataillon, of Sodoro, Daly & Sodoro, Omaha, and Kelly K. Duncan, Rutherford Institute of Nebraska, for appellant.

Lawrence I. Batt and Thomas P. Kenny, Batt & Brodkey, Omaha, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

PER CURIAM.

Dennis Hartford appeals the trial court's refusal to enjoin the watering of an Omaha medical clinic's lawn while Hartford demonstrates against abortion outside the clinic.We affirm the ruling of the district court for Douglas County.

The appellant argues that the Womens Services, P.C., medical clinic is sprinkling the public sidewalks by turning on its automatic sprinkler system every morning, thereby creating a nuisance which interferes with his right to free speech.

Appellee is an obstetric and gynecologic clinic which is housed in a building owned by the sole shareholder of the clinic.Abortions are among the medical services it offers.The clinic is located at the corner of Douglas and 46th Streets in Omaha.The clinic is bounded by Douglas Street on the north and 46th Street on the west.The building is set back from both streets.Private parking lots are located on both the north and the south sides of the building.There is lawn to the west of the structure.Public sidewalks are along the north and west perimeters of the lot, edging the northern parking lot and the lawn.There are strips of lawn between the sidewalks and the curbing.

The entrance to the clinic's building is on the west side, with a private walkway giving access across the lawn from the 46th Street sidewalk.There is also access from the parking lots to the porch, immediately in front of the entrance.Patients may use either the private walkways to the entrance from the parking lots or the public sidewalk which parallels 46th Street.Picketers are restricted to the public sidewalk area.

An automatic sprinkler system waters the lawn between approximately 7:15 and 8:30 every morning between April and October.Four separate cycles operate at intervals each watering a separate portion of the lawn.The clinic director testified that depending on the time of year, each cycle was set to operate for 10 to 15 minutes.Hartford testified that each of three cycles operate separately for 20 minutes and that the fourth cycle "doesn't always work."Only one cycle operates at a time.At no time are all sections of the lawn watered simultaneously.

When each unit of the system is in use, the sidewalk bordering that section of the lawn being watered gets wet.Of course, anyone and anything on the sidewalk bordering the section being sprinkled at the time will also get wet.At oral argument, Hartford conceded that only about 10 percent of the sidewalk on the 46th Street side of the building gets wet at any one time.

Hartford regularly prays and demonstrates against abortion outside the clinic once a week.He pickets the clinic's abortion practices, hands out literature, and gives advice regarding abortion alternatives to any woman about to enter the clinic who is willing to listen to him.He speaks loudly in order to be heard by the women entering the clinic.As stated, Hartford usually goes to the clinic once a week, between 7:15 and 8:30 a.m.He believes that this is the time when women visit the clinic for abortion procedures.Hartford considers that to be the time when he has the best chance of being the most effective in his attempt to dissuade women from having abortions.

The appellant testified that the spray from the water sprinklers, which at times is 5 feet high, inhibits him from standing on the public sidewalk in front of the clinic.He testified that he and his literature get wet and that he is forced into the street to stay dry, thereby endangering his safety and making it more difficult than normal to speak to the women who are entering the clinic.

Hartford asked Womens Services, P.C., to water its lawn at a different time or to water it in such a way that the sidewalks remain clear and dry.The clinic refused.The appellant complained to the Omaha cityprosecutor's office and asked that charges be brought against the clinic for violation of OmahaMun.Code, ch. 18, art. I, § 18-4(1975)(creation or maintenance of a nuisance) and OmahaMun.Code, ch. 20, art. III, § 20-44(1967)(obstructing public ways).That office refused to prosecute.Thereafter, Hartford filed an amended petition in the district court for Douglas County praying for an injunction prohibiting the clinic from watering its lawn when the appellant was using the sidewalk for the purposes already enumerated.Hartford contended that the clinic's watering practices constitute a nuisance and restrict his freedom of speech and assembly and his right to demonstrate.

The district court denied Hartford's request for injunctive relief.It found that the appellant lacked standing as a private individual to maintain an action for nuisance, since the injury he suffered was not different and distinct from that suffered by the general public.

Hartford appeals the trial court's denial of injunctive relief, arguing that the district court erred (1) in determining that the harm suffered by the appellant was identical to that suffered by all persons who used the public sidewalk and (2) in not finding that the appellee's actions were in violation of Neb.Rev.Stat. §§ 20-123and20-124(Reissue 1987), which Hartford claims protect him from interference with his right to free speech.

On appeal, Hartford still seeks only injunctive relief.An action for injunction sounds in equity.In an appeal of an equity action, this court tries factual questions de novo on the record and reaches a conclusion independent of the findings of the trial court; provided, where the credible evidence is in conflict on a material issue of fact, we consider and may give weight to the fact that the trial judge heard and observed the witnesses and accepted one...