Jones v. Rumford
| Citation | 392 P.2d 808,64 Wn.2d 559 |
| Decision Date | 04 June 1964 |
| Docket Number | No. 36976,36976 |
| Court | United States State Supreme Court of Washington |
| Parties | Frederick JONES, Respondent, v. O. L. RUMFORD and Pauline Rumford, husband and wife, Appellants. |
Neil P. Cronin and Edward John Crowley, Jr., Spokane, for appellants.
Robert E. Anderson, Spokane, for respondent.
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The plaintiff, respondent here, brought this action to enjoin the defendants from operating a chicken breeding plant, and for damages for alleged depreciation in value of his property, for impairment of the use of his property, and for invasion of his privacy. He contended that the defendants' breeding plant constituted a nuisance because of the existence of offensive odors, flies, insects and rodents, all caused by the plant.
The trial court ruled that the plaintiff was not entitled to a jury as a matter of right because of the equitable aspects of the case, but called a jury in an advisory capacity to which was submitted the question of damages. This jury returned a verdict for the plaintiff of $500 'for invasion of privacy and impairment of use; and nothing (no dollars) for the physical impairment of their property.' Thereupon the court made findings that odors were emitted from the breeding plant during the 2-year period prior to November 8, 1961, the 2-year statute of limitations having been applied, and further that because of the odors, which were offensive to the plaintiff, the plaintiff was unable to properly enjoy his property in a normal manner and his privacy and the use of his property had been impaired. The court awarded $500 damages, as found by the jury, but denied other damages. It further found that the defendants had invested approximately $50,000 in their plant, and had used all modern techniques to control the odor but had been unable to do so. The findings further stated that considering the rights of the respective parties, the defendants should not be restrained from continuing the operation of their business and that the plaintiff is left to his recourse at law in the event that the nuisance recurs, and that plaintiff's rights can be protected by the awarding of damages for any recurring nuisance or impairment of use of the plaintiff's property.
The chicken breeding plant is located near Spokane in a suburban area which has been platted into acre tracts. The defendants' property fronts of a street, where it has a width of 100 feet and a depth of 410 feet. Their residence occupies the front of their acre. The entire chicken raising operation is confined to a large building 89 feet wide and 154 feet long, the front of which is 130 feet from the street. There are two rooms on the ground floor and a breeder room on the second floor. The outside walls are aluminum on the weather side and exterior plywood on the inside. The floor is concrete and includes two dropping pits which run the length of the building. These were cleaned once in 1960 and twice in 1961. Only half of the building was completed prior to 1960, and then accommodated about 2,250 birds. Increased to its present size in 1960, the building normally houses 5,000 birds, with occasional overlaps when young birds are brought in, so the total may reach 7,000 chickens. The necessary fans for the forced air system were not installed until 1960. These exhaust through four stacks in the roof, the tops of which are 22 to 24 feet above the ground level.
The plaintiff has his home on a 2-acre plot next door to the chicken plant. The walls of the plant are 4 feet from his line. Prior to the building of this plant, both parties signed a petition which caused the area to be zoned to permit agricultural pursuits, including poultry raising.
It is the contention of the defendants, now appellants, that because their operation is in an area zoned for agriculture they should not be liable for damages unless they operate their plant in an unreasonable manner. They assert that in any case the plaintiff is estopped to complain, for the reason that he stood by without objection while defendants invested a very substantial sum in the construction of their plant. However, this latter contention is eliminated because of the positive testimony of the plaintiff that the defendant assured him before the building was constructed 'that you would never know a chicken coop was there.' If believed by the court, such a representation by the defendant would eliminate his contention that the plaintiff is now estopped.
In connection with the question of nuisance, defendants argue that what is permitted by law cannot be a nuisance per se. They cite Hardin v. Olympic Portland Cement Co., 89 Wash. 320, p. 325, 154 P. 450, p. 451 (1916), which contains this language:
'* * * a lawful business is never a nuisance per se but may become a nuisance by reason of extraneous circumstances, such as being located in an inappropriate place, or conducted or kept in an improper manner. * * *
'No one has a right, however, to pursue a lawful business, if thereby he injures his neighbor (except such injuries as the public must suffer in common in order to permit lawful enterprises to operate) without compensating such for the damages actually sustained. * * *' (Italics ours.)
The defendants further quote from Bruskland v. Oak Theater, Inc., 42 Wash.2d 346, p. 350, 254 P.2d 1035, p. 1037 (1953), as follows:
'* * * The rule of law deducible from the statute and these cases is that, when proper authority authorizes the operation of a lawful business in a certain area, such business does not constitute a nuisance in a legal sense, but it may become such if it is conducted in such an unreasonable manner that it substantially annoys the comfort or repose of others or essentially interferes with the enjoyment of property in violation of RCW 7.48.010 and 7.48.120. * * *' (Italics ours.)
Defendants contend that if the area was zoned for agriculture, and if the trial court found that they had used all modern techniques to control the odor but had been unable to do so, they could not have been maintaining a nuisance....
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