Kaiser v. Western R/C Flyers, Inc.

• Decision Date: 06 December 1991
• Docket Number: No. 89-486,89-486
• Citation: 239 Neb. 624,477 N.W.2d 557
• Parties: Larry R. KAISER et al., Appellants, Robert Isenberg et al., Appellees, v. WESTERN R/C FLYERS, INC., et al., Appellees.
• Court: Nebraska Supreme Court

Page 557

477 N.W.2d 557

239 Neb. 624

Larry R. KAISER et al., Appellants, Robert Isenberg et al., Appellees, v. WESTERN R/C FLYERS, INC., et al., Appellees.

No. 89-486.

Supreme Court of Nebraska.

Dec. 6, 1991.

Syllabus by the Court

1. Equity: Appeal and Error. In the appeal of an equity action, the Supreme Court tries factual questions de novo on the record and reaches a conclusion independent of the findings of the trial court; provided, however, that where the credible evidence is in conflict on a material issue of fact, the court considers 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.

2. Expert Witnesses: Rules of Evidence. Expert testimony is relevant and admissible only if it tends to help the trier of fact understand the evidence or to determine a fact issue.

3. Expert Witness: Rules of Evidence. Generally, expert testimony concerning a question of law is not admissible in evidence.

4. Property: Nuisances. Mere ownership of real property imposes no responsibility for a nuisance on it unless the owner is instrumental in causing the nuisance.

5. Zoning: Words and Phrases. The term "commercial," as used in the law of zoning, denotes a use for profit.

6. Nuisances. Whether noise is sufficient to constitute a nuisance depends upon its effect upon an ordinary, reasonable man, that is, a normal person of ordinary habits and sensibilities.

7. Nuisances: Presumptions. To justify abatement of a claimed nuisance, the annoyance must be such as to cause actual physical discomfort to one of ordinary sensibilities. It is presumed, in the absence of evidence to the contrary, that a plaintiff has ordinary sensibilities.

James T. Gleason, of Stalnaker, Becker, Buresh, Gleason & Farnham, P.C., Omaha, for appellants.

Norman F. Bradshaw, Omaha, for appellee Western R/C Flyers.

Deborah D. McLarney, of Erickson & Sederstrom, P.C., Omaha, for appellees Startzer.

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

PER CURIAM.

In this action, the plaintiffs Larry R. and Katherine Kaiser, Margaret Schraeder, and Anthony and Helen Stepanek sought to permanently enjoin the defendants, Western R/C Flyers, Inc., and Jay and Elaine Startzer, from operating a model airplane airfield near the village of Springfield, Sarpy County, Nebraska. In their amended petition, the plaintiffs alleged that the noise generated by the flying of the model airplanes violated Springfield zoning ordinances, was a nuisance, violated their statutory right to privacy, and constituted a continuing trespass. The district court found that the plaintiffs failed to meet their burden of proof regarding the alleged violation of zoning ordinances, that the defendants' activities did not constitute a nuisance, that the statutes relating to the right of privacy did not apply to the facts as alleged, that Western R/C Flyers was guilty of an unintentional continuing trespass which should be enjoined based upon the payment of fines for any future trespasses, and that each party should pay its own costs.

The plaintiffs, except Robert and Donna Isenberg, have appealed, contending the district court erred (1) in finding that they failed to meet their burden of proving the defendants were using the real estate in violation of applicable zoning ordinances, (2) in finding that using the premises for operation of model airplanes did not constitute a nuisance, (3) in finding that the use of the premises by the defendants did not violate plaintiffs' statutory right to privacy, (4) in failing to enjoin the defendants from using the premises for a radio-controlled scale model airplane airfield, and (5) in taxing costs to the plaintiffs.

An action for an injunction sounds in equity. In the appeal of an equity action, the Supreme Court tries factual questions de novo on the record and reaches a conclusion independent of the findings of the trial court; provided, however, that where the credible evidence is in conflict on a material issue of fact, the court considers 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. State ex rel. Spire v. Strawberries, Inc., 239 Neb. 1, 473 N.W.2d 428 (1991); Burgess v. Omahawks Radio Control Org., 219 Neb. 100, 362 N.W.2d 27 (1985).

The record shows that defendants Startzers own approximately 160 acres of land located within the zoning jurisdiction of the village of Springfield. The plaintiffs own property adjacent to the Startzer property. On January 2, 1973, the Startzer property was zoned "A Agricultural Residential District," pursuant to a Springfield village ordinance. When the ordinance was passed, the Startzers used the land primarily to raise row crops. An airstrip has also existed on the Startzer property for 20 to 25 years. The airstrip was used infrequently and ceased being used for full size aircraft for approximately 2 years during the mid-1970's.

Defendant Western R/C Flyers is a domestic nonprofit corporation organized to promote the recreational flying of radio-controlled model airplanes. On November 13, 1980, the club leased 1 acre of the Startzer property as an airfield and club site for flying radio-controlled model airplanes. They built a shed on the property in 1983. The club has maintained a leasehold interest in the Startzer property and now pays $500 per year in rent. Startzers have also given the club permission to fly planes within the boundaries of the entire Startzer property. The flight area is an oval shape approximately 600 feet long and 100 to 120 feet wide. The planes that are flown are replicas of real aircraft, powered by small gas engines and a gasoline-type fuel.

The planes occasionally fly beyond the border of the Startzer property and over the plaintiffs' property. Plaintiff Anthony Stepanek produced the remains of 4 model airplanes which crashed on his property between 1982 and 1988 and testified he was aware of approximately 12 more airplanes that had crashed on his property. Larry Kaiser testified that he observed one plane overfly his property and saw a plane crash across the road from Margaret Schraeder's house in 1987, on property not owned by any party to this lawsuit.

The plaintiffs first contend that the operation of radio-controlled model airplanes on the Startzer property violates the Springfield zoning ordinances. Under these ordinances, the "principal" uses permitted in the "A Agricultural Residential District" are (1) agricultural farms, truck gardens, greenhouses, plant nurseries, orchards, grain storage facilities, and the usual agricultural farm buildings and structures; (2) single-family dwellings; (3) roadside stands offering for sale agricultural products produced on the premises; (4) churches, seminaries, and convents, including residences for pastors and teachers; (5) public and parochial schools and colleges; (6) publicly owned and operated buildings and facilities such as community centers, auditoriums, libraries, and museums; (7) fire stations; (8) public parks and recreation areas, playgrounds, and forest and conservation areas, including commercial uses and campgrounds under franchise of county or state governmental agencies; (9) private recreation areas and facilities, including lakes, ponds, country clubs, golf courses, and swimming pools; (10) public utility distribution systems, substations, terminal facilities, and reservoirs; (11) railroads; (12) irrigation facilities; and (13) hospitals and eleemosynary institutions. No special permit is required for these principal uses.

The conditional uses allowed in agricultural residential districts include (1) private and commercial kennels and facilities for raising, breeding, and boarding of dogs and other small animals; (2) confined feeding of livestock and feedlots; (3) sanitary landfills; (4) radio and television towers and transmitters; (5) airports (defined as "any area which is used or is intended to be used for the taking off and landing of aircraft, including helicopters, and any appurtenant areas which are used or are intended to be used for airport building or facilities, including open spaces, taxiways, and tie-down areas"; aircraft are defined as "any contrivance, now known or hereafter invented, for use or designed for navigation of or flight in the air or outer space, including missiles"); (6) mobile home parks; (7) nonfarm single-family dwellings; (8) home occupations; (9) extraction and processing of rock, gravel and sand, clay, and dirt; (10) temporary trailers; (11) commercial recreational areas, including facilities for fishing, shooting, hunting, auto racing, cycle clubs, bridle clubs, etc.; (12) churches, seminaries, and convents, including residences for pastors and teachers; (13) commercial camping areas; (14) public and parochial schools and colleges; (15) publicly owned and operated buildings and facilities such as community centers, auditoriums, libraries, and museums and privately owned noncommercial museums and historic areas; (16) hospitals, nursing homes, and eleemosynary institutions; (17) billboards; and (18) signs.

Conditional uses of land or buildings, as specified for each zoning district, are subject to the issuance of a special use permit with the following exception:

Where a building or structure in the use thereof, or use of land lawfully exists on the effective date of this ordinance, then such use is classified by this ordinance as an allowable conditional use in the zoning district where it is located. The...