Koeber v. Apex-Albuq Phoenix Exp.
| Decision Date | 18 March 1963 |
| Docket Number | No. 7144,APEX-ALBUQ,7144 |
| Parties | , 2 A.L.R.3d 1368 Robert C. KOEBER and Mela S. Koeber, his wife, Dr. John W. Myers, Sandia Ranch Sanatorium, Julia Tappan, Anne Raymond, Archibald Napier and Vera Napier, his wife, Lloyd L. Goff, Plaintiffs-Appellees, v.PHOENIX EXPRESS, a corporation, Defendant-Appellant. |
| Court | New Mexico Supreme Court |
B. C. Hernandez, Albuquerque, for appellant.
R. F. Deacon Arledge, Albuquerque, for appellees.
Apex-Albuq Phoenix Express has appealed from a judgment restraining and enjoining it from constructing, operating or maintaining a truck terminal at the premises known as 7423 Edith Boulevard, N.E. in Albuquerque, New Mexico.
Thirty-one findings of fact were adopted by the trial court, including No. 14:
While many other findings are attacked as being unsupported by the evidence, and even though four points have been asserted as error, we think they present only the single question of whether the evidence substantially supports the finding that operation of the truck terminal in that location would constitute a nuisance either in fact or per se. An excellent definition of such nuisances is found in Denney v. United States, 185 F.2d 108 (10th Cir., 1950), where Judge Murrah, speaking for the court, said:
* * *'
It is clear that the maintenance and operation of a truck terminal is not in and of itself and under any and all circumstances a nuisance, and does not, therefore, come within the classification of a nuisance per se. The fact, however, that the trial court erroneously found such maintenance and operation to constitute a nuisance per se does not require a reversal if there remain sufficient findings upon which to sustain the judgment. New Jersey Zinc Co. v. Local 890, 56 N.M. 447, 245 P.2d 156; Paulos v. Janetakos, 43 N.M. 327, 93 P.2d 989.
Phillips v. Allingham, 38 N.M. 361, 33 P.2d 910 quoted the following note from 7 A.L.R. 749 with approval:
'It is well settled that a court of equity may enjoin a threatened or anticipated nuisance, public or private, where it clearly appears that a nuisance will necessarily result from the contemplated act or thing which it is sought to enjoin.'
The question here is not one limited to a mere apprehended fear that its operation might result in depreciation of the value of adjacent...
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