Hobbs v. Smith

• Decision Date: 22 February 1972
• Docket Number: No. C--97,C--97
• Citation: 493 P.2d 1352,177 Colo. 299
• Parties: , 4 ERC 1092, 2 Envtl. L. Rep. 20,380 Arlene HOBBS, Petitioner, v. M. P. SMITH et al., Respondents.
• Court: Colorado Supreme Court

Page 1352

493 P.2d 1352

177 Colo. 299, 4 ERC 1092, 2 Envtl.

L. Rep. 20,380

Arlene HOBBS, Petitioner, v. M. P. SMITH et al., Respondents.

No. C--97.

Supreme Court of Colorado, En Banc.

Feb. 22, 1972.

Rehearing Denied March 13, 1972.

Elias J. Candell, Lakewood, for petitioner.

Sonheim, Whitworth & Helm, Dale H. Helm, Arvada, for respondents.

Evans, Peterson & Torbet, Paul Evans, Colorado Springs, amici curiae.

HODGES, Justice.

We granted certiorari in this case to consider petitioner's argument that the decision of the Court of Appeals in Hobbs v. Smith, 29 Colo.App. 301, 484 P.2d 804, is contrary to the decision of this court in Robinson Brick Co. v. Luthi, 115 Colo. 106, 169 P.2d 171. The Court of Appeals affirmed a trial court judgment which granted an injunction prohibiting the continuation of circumstances which constituted a private nuisance. The petitioner interprets the Robinson case to stand for the proposition that when legislative authorities, by zoning ordinances, permit an act or a particular use of land, a court has no authority to enjoin a public or private nuisance naturally resulting therefrom. The Court of Appeals' opinion did not mention Robinson.

The transcript of testimony was not certified to either the Court of Appeals or to this court. Therefore, as stated by the Court of Appeals, the findings made by the trial court are binding upon this court. Howard v. Lester, 153 Colo. 199, 385 P.2d 121.

The trial court found that the petitioner kept one to two horses in the backyard of her home, which was located in a residential section of Jefferson County. A Jefferson County Zoning Ordinance permitted the keeping of two horses on petitioner's property. The trial court found that petitioner was exercising all reasonable skill and care in maintaining the property where the animals were kept and that no health regulations were being violated. However, the trial court also found that flies were attracted to the general area by the horses and that noxious odors therefrom permeated the area. It was found that the respondents suffered a substantial interference with the use and enjoyment of their property which adjoined petitioner's property. The trial court ruled that while the keeping of horses did not violate the zoning ordinance, it did constitute a nuisance in fact (per accidens) and therefore, there was a proper basis for granting an injunction prohibiting the keeping of horses on the petitioner's property. It has been held that a lawful use may become a nuisance in fact or per accidens by reason of locality, surroundings, or other circumstances. Robichaux v. Huppenbauer, 258 La. 139, 245 So.2d 385.

In its opinion, affirming the trial court's judgment, the Court of Appeals held that even though zoning regulations permit an act to be done, and the act is being done with reasonable care and skill, the courts may grant relief where it is found that the acts complained of constitute a nuisance per accidens, and that to hold otherwise would be to state that the legislative body may license a nuisance.

Robinson Brick Co. v. Luthi, Supra, is anything but a model of judicial clarity. Whether the circumstances therein were primarily treated as a public or a private nuisance is difficult to determine. The nuisance complained of in that case was a clay mining operation which resulted in substantial amounts of dust being blown onto adjoining property including the plaintiff's. The plaintiff was engaged in the greenhouse business and the dust had damaged and was adversely affecting the growth of some plants. In Robinson, at the time the action was brought, the clay mine was a non-conforming use under the applicable zoning ordinance. The trial court issued an injunction prohibiting any further excavations and ordering that the existing excavation be filled in. The plaintiff also received $10 in nominal damages.

On writ of error, this court in Robinson upheld the award of damages but reversed the trial court on the injunctions, stating:

'Where the legislative arm of the government has declared by statute and zoning resolution what activities may or may not be conducted in a prescribed zone, it has in effect declared what is or is not a public nuisance. What might have been a proper field for judicial action prior to such legislation becomes improper when the law-making branch of government has entered the field. None of the numerous cases cited appears to go so far as to approve the enjoining of a business operating under valid legislative zoning authority.'

Robinson is a 1946 case. An examination of many more current cases in numerous jurisdictions reveals a contrary situation to that expressed in the last sentence of the above quotation. It is now the generally accepted rule that regardless of compliance with zoning ordinances or regulations, both business and residential uses may be enjoined if they constitute a nuisance to an adjoining property owner or resident. See e.g. Williams v. Blue Bird Laundry Co., 85 Cal.App. 388, 259 P. 484; Ferreira v. D'Asaro, 152 So.2d 736 (Fla.App.); Camp v. Warrington, 227 Ga. 674, 182 S.E.2d 419; Valley Poultry Farms, Inc. v. Preece, Ky., 406 S.W.2d 413; Weltshe v. Graf, 323 Mass. 498, 82 N.E.2d 795; Urie v. Franconia Paper Co., 107 N.H. 131, 218 A.2d 360; Kozesnik v. Montgomery Twp., 24 N.J. 154, 131 A.2d 1, and St. Louis-S.F.R. Co. v. Matthews, 174 Okl. 167, 49 P.2d 752.

Robinson has been construed to mean that in the situation where a lawful use constitutes a nuisance, the proper remedy is damages and not an injunction. 166 A.L.R. 655; Colorado Bar Association, Environmental Law Handbook 129.30 (1971). In 58 Am.Jur.2d Nuisances § 230, the authors cite the Robinson case for just such a proposition and then state

'According to the weight of authority, however, while what is authorized by law cannot be a public nuisance, it may nevertheless be a private nuisance, and the legislative authorization does not affect any claim of a private citizen for damages for any special inconvenience and discomfort caused by the authorized act not experienced by the public at large, Or for an injunction.' (Emphasis added.)

In our analysis, the holding in the Robinson case is for narrower than that ascribed to it by the above cited authorities.

The court in Robinson also stated

'In the instant case, it will be noted that the trial court by its decree held that clay mining on the premises of the brick company was both a public and a private nuisance. * * * We are of the opinion that the state of Colorado and the county of Arapahoe already have preempted the field of public nuisance as it relates to this case, not only for the reasons already mentioned, but also because of the provision in section 19 of the County Planning Act which reads in part: 'The board of county commissioners may in any zoning resolution provide for the termination of non-conforming uses, either by...