Jerry Harmon Motors, Inc. v. Farmers Union Grain Terminal Ass'n

• Decision Date: 04 August 1983
• Docket Number: No. 10380,10380
• Parties: JERRY HARMON MOTORS, INC., a North Dakota corporation, Plaintiff and Appellee, v. The FARMERS UNION GRAIN TERMINAL ASSOCIATION, a foreign corporation, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 427

337 N.W.2d 427

JERRY HARMON MOTORS, INC., a North Dakota corporation, Plaintiff and Appellee, v. The FARMERS UNION GRAIN TERMINAL ASSOCIATION, a foreign

corporation, Defendant and Appellant.

Civ. No. 10380.

Supreme Court of North Dakota.

Aug. 4, 1983.

McIntee & Whisenand, Williston, for plaintiff and appellee; argued by Frederick E. Whisenand, Jr., Williston.

Pringle & Herigstad, Minot, for defendant and appellant; argued by Mitchell Mahoney, Minot.

SAND, Justice.

Farmers Union Grain Terminal Association (GTA) appealed from a district court judgment determining that GTA's actions in discharging dust, chaff, and grindings into the atmosphere and onto Jerry Harmon Motors, Inc. (Harmon Motors) new and used car and truck inventory constituted a private nuisance and awarding Harmon Motors $57,620.33 in damages.

Harmon Motors has owned and operated a motor vehicle dealership located at 1106 West Second Street in Williston, North Dakota since March 1975. GTA operated a feed plant located at 1201 West Second Street in Williston, North Dakota from 1958 until the plant burned down in January 1982. The feed plant had been at that location under other ownership since 1930. GTA's feed plant was located across Second Street to the south and southwest of Harmon Motors' display lot for new and used cars. In 1976 Harmon Motors obtained additional land and expanded its display lot, and began displaying cars on the additional lots in the summer of 1977. The additional lots were directly north of GTA's feed lot. Jerry Harmon and his employees testified that they began to notice dust on the display cars after Harmon Motors expanded its operation in 1977. Dust was more evident in the front row of Harmon Motors' lot and became less noticeable in cars further away from GTA's feed plant. Harmon Motors asserted that, as a result of the dust, its costs in keeping its display cars clean increased.

Harmon Motors registered a complaint with GTA and, after that complaint was not resolved to its satisfaction, initiated this action against GTA alleging in substance that GTA's feed grinding and processing of feed was the direct and proximate result of dust and chaff settling on cars in its display lot; that because dust settled on its display cars, Harmon Motors had to continually clean the vehicles at an additional cost of $150,000, so that the vehicles would be more attractive for resale; and that GTA's activities constituted a private nuisance.

The court, after a bench trial, issued a memorandum opinion determining that GTA's actions constituted a private nuisance and that Harmon Motors had sustained damages of $57,620.33. Findings of fact, conclusions of law, and order for judgment and judgment were entered, and GTA appealed from that judgment.

GTA, on appeal, contended and argued that (1) the decision of the district court was fully reviewable by this court and not subject to the clearly erroneous standard of North Dakota Rule of Civil Procedure 52(a); (2) the findings of fact were erroneous and did not justify the legal conclusions that the GTA plant was a private nuisance; and (3) the facts did not support the award of $57,620.33 in damages.

These issues are interrelated and involve many of the same principles and concepts of law and will be considered and discussed together rather than separately.

Our laws concerning nuisances are found in NDCC Ch. 42-01. NDCC Sec. 42-01-02 provides that:

"A private nuisance is one which affects a single individual or a determinate number of persons in the enjoyment of some private right not common to the public."

NDCC Sec. 42-01-01 defines a nuisance as follows:

"Nuisance--Definition.--A nuisance consists in unlawfully doing an act or omitting to perform a duty, which act or omission:

1. Annoys, injures, or endangers the comfort, repose, health, or safety of others;

2. Offends decency;

3. Unlawfully interferes with, obstructs or tends to obstruct, or renders dangerous for passage, any lake, navigable river, bay, stream, canal, basin, public park, square, street, or highway; or

4. In any way renders other persons insecure in life or in the use of property."

Initially, we note that Harmon Motors did not contend or argue that the activities of GTA were unlawful or constituted a health hazard. Therefore, we must determine if GTA's activities constituted an omission to perform a duty contrary to subsections 1, 2, 3 or 4 of NDCC Sec. 42-01-01.

The trial court found as a fact that GTA ground and processed various types of feed and manufactured feed pellets at its plant and, as a result, substantial amounts of dust, chaff, and grindings were discharged into the atmosphere when there was no wind, and more specifically when the wind was blowing from the south, southwest, and west. The trial court found that those particles fell and settled upon the new and used car and truck inventory, causing Harmon Motors to incur additional costs and expenses in washing and maintaining the motor vehicles on display; that the total expense incurred by Harmon Motors from the years 1977 to 1981 in washing and maintaining the new and used motor vehicle inventory amounted to $199,370.30. The court then found that Harmon Motors was damaged in the sum of $57,620.33 during the five-year period of time. Apparently this figure was reached by multiplying the total expenditures of Harmon Motors for washing cars during the five-year period by 28.9% which was the time established that the wind blew from the south, southwest, and west. The trial court, in its findings of fact and its conclusions of law, stated that the activities of GTA constituted a private nuisance.

GTA argued and contended that Rule 52(a) of the North Dakota Rules of Civil Procedure does not apply to the trial court's findings that its activities constituted a private nuisance because that determination was a mixture of law and fact, and, as a consequence, was fully reviewable. See Earth Builders, Inc. v. State of North Dakota, 325 N.W.2d 258 (N.D.1982) [determination that highway department leased sand and gravel rights in good faith without notice of competing interest is mixed question of law and fact]; Jerry Harmon Motors, Inc. v. Heth, 316 N.W.2d 324 (N.D.1982) [findings of trial court were a mixture of findings of fact and conclusions of law]; and Wallwork Lease and Rental v. JNJ Investments, 303 N.W.2d 545 (N.D.1981) [findings which are mixed questions of law and fact are not governed by "clearly erroneous" standard]. Additionally, GTA contended that even if the clearly erroneous standard of Rule 52(a) applied, this court should rule that the finding of a private nuisance was erroneous.

Harmon Motors, in response, cited Teinen v. Lally, 10 N.D. 153, 86 N.W. 356 (1901), and State v. Hooker, 87 N.W.2d 337 (N.D.1957) wherein this court essentially stated that the question of whether or not a nuisance exists is a question of fact.

In Slope County, Etc. v. Consolidation Coal Co., 277 N.W.2d 124 (N.D.1979) we, in effect, said that whether a finding is a "finding of fact" or a "conclusion of law" depends on the manner by which it is reached. If it is reached by natural reasoning, it is a finding of fact, but if it is reached by fixed rules of law or if the ultimate conclusion can be arrived at only by applying rules of law, the result is a "conclusion of law." We also said:

" 'A "finding of fact" is a conclusion drawn by way of reasonable inference from the evidence. State Acting By and Through Oregon State Board of Higher Education v. Cummings, 205 Or. 500, 288 P.2d 1036, 1051, 289 P.2d 1083; Griffith v. Gardner, 9 Cir., 196 F.2d 698.'

"Thus, it has been said that if facts are undisputed and only one, if any, inference can reasonably be drawn from those facts, the determination of that inference is a question of law. When, however, facts are not in dispute but permit the drawing of difference inferences, the drawing of one such permissible inference is said to be a finding of fact. Village of Prentice v. Industrial Commission, 38 Wis.2d 219, 156 N.W.2d 482 (1968). Findings of fact are the realities as disclosed by the evidence as distinguished from their legal effect or consequences. Cortner v. National Cash Register Co., 25 Ohio Misc. 156, 262 N.E.2d 586, 588 (1970)." Slope Cty., Etc. v. Consolidation Coal Co., 277 N.W.2d at 127.

Although Teinen v. Lally, supra, and State v. Hooker, supra, suggest that a determination of whether or not a nuisance exists is a question of fact, we believe the statements and rationale of the court in those two cases established that this court was, in effect, saying that the facts must first be established in order to determine whether or not a nuisance exists. It is elementary that without facts it is virtually impossible to determine if a nuisance exists. The law can only be applied to facts. Once a factual determination has been made based on the evidence submitted, then the law may be applied to the facts to determine if those facts constitute a nuisance. The application of a set of facts to a fixed rule of law to determine their legal effect becomes a conclusion of law. We agree that the various factual circumstances of each case must be resolved before the rules of law may be applied to those circumstances to determine whether or not a nuisance exists; however, we believe the ultimate resolution of whether or not a nuisance exists, based on the facts and circumstances of each case, is a conclusion of law.

Harmon Motors is located in an area zoned C-2 "a general commercial district," and GTA was located in an area zoned N-1 "a light industrial district." No evidence was introduced that GTA was operating in violation of any city zoning ordinance or that GTA was in violation of any health ordinances. For that matter, the Williston zoning ordinance passed in 1970 provides for an exception for those businesses which were in operation when the zoning ordinance was adopted and GTA was in operation...