Leach v. Florkosky

• Decision Date: 24 July 1958
• Citation: 144 A.2d 334,145 Conn. 490
• Court: Connecticut Supreme Court
• Parties: Frank J. LEACH et al. v. Albert R. FLORKOSKY et al. Supreme Court of Errors of Connecticut

Page 334

144 A.2d 334

145 Conn. 490

Frank J. LEACH et al. v. Albert R. FLORKOSKY et al.

Supreme Court of Errors of Connecticut.

July 24, 1958.

Stephen K. Elliott, Waterbury, with whom was John W. Joy, Hartford, for appellants (defendants).

J. Robert Lacey, Southington, for appellees (plaintiffs).

Before DALY, C. J., and BALDWIN, KING, MURPHY and MULLITZ, JJ.

MELLITZ, Associate Justice.

The plaintiffs brought this action for an injunction to restrain the defendants from operating a motor vehicle junk business or motor vehicle junk yard, in violation of the provisions of chapter 230 of the General Statutes, on premises owned by the defendants in the town of Southington, and from maintaining a nuisance thereon. From a judgment in favor of the plaintiffs enjoining the defendants from continuing the activities complained of, the defendants have appealed. The court's memorandum of decision makes it clear that the judgment is based solely on the claimed statutory violation. No question of a nuisance apart from that is before us. Thus the sole determinative issue is whether the defendants are maintaining a motor vehicle junk yard on their premises within the meaning of § 2332d of the 1955 Cumulative Supplement to the General Statutes. The statute reads as follows: "Motor vehicle junk business' or 'motor vehicle junk yard' shall include any business and any place of storage or deposit, whether in connection with another business or not, which * * * has stored or deposited two or more unregistered motor vehicles which are * * * no longer intended or in condition for legal use on the public highways, or used parts of motor vehicles or old iron, metal, glass, paper, cordage or other waste or discarded or secondhand material which has been a part, or intended to be a part, of any motor vehicle, the sum of which parts or material shall be equal in bulk to two or more motor vehicles. They shall also include any place of business or storage or deposit of motor vehicles purchased for the purpose of dismantling the vehicles for parts or for use of the metal for scrap and where it is intended to burn material which are parts of a motor vehicle or cut up the parts thereof.'

The facts found, with such additions as are warranted, are as follows: The defendants own a five-acre piece of land on Canal Street in Southington, bordering on the tracks of the New York, New Haven and Hartford Railroad, where they conduct a business of salvaging and stripping ungraded tries. Opposite the premises of the defendants, the plaintiffs own a tract of land on Canal Street, with a dwelling house and other buildings thereon, and operate there the business of truck garden farmers. The defendants, in conducting their business, buy used tires, which they sort and grade. Many are then resold at wholesale. They do no retail business. Most of the defendants' business is salvaging casings. They recently constructed a cement block building, forty by eighty feet, and purchased a splitting machine for stripping the rubber from tires which cannot be resold, so that they are enabled to dispose of the rubber by sale. In the operation of the business, the defendants have a stock pile of 1000 or more tires spread over a large portion of their property. The tires are purchased by them and sometimes come to them mounted on metal rims or whole wheels. The defendants do not buy old automobiles to scrap or dismantle, or any other parts of vehicles, except tires. The only spare parts on their premises are parts for use on their own vehicles. The tires processed by them are of all sizes and descriptions, some chopped in half and some with cuts and holes. They are spread on the defendants' property over a distance of two to three hundred feet along Canal Street. They are piled five or fix feet high in some places and are greater in bulk than two motor vehicles. A report made in the regular course of his duties by an inspector of the department of motor vehicles, whose duty it was to determine whether premises are motor vehicle junk yards, stated that the defendants are engaged in the business of buying and selling automobile tires and tubes and that their place of business is not a motor vehicle junk yard under the standards laid down by the department. The defendants do not have a license from the commissioner of motor vehicles for the operation of a motor vehicle junk yard, nor have they obtained from the selectmen of the town of Southington a certificate approving their premises as a location therefor. The trial court concluded that in the operation of their tire salvage business the defendant are using their land as a place of storage or deposit of large quantities of used motor vehicle tires, the sum of which is equal in bulk to two or more motor vehicles; that they are maintaining a motor vehicle junk yard or motor vehicle junk business within the meaning of § 2332d without a license, in violation of § 4655 of the General Statutes (now Public Acts 1957, No. 438); and that the actions of the defendants constitute a nuisance from which the plaintiffs have suffered special damage entitling them to maintain this action for an injunction.

The effect of the court's interpretation of the statute is to make the continued operation of the defendants' business dependent upon their obtaining a license to maintain a motor vehicle junk yard. This in turn has the effect of subjecting their business to all of the regulations and requirements which find their justification in the special considerations applicable to junk dealers and which, on that account, warrant the exercise of the police power for the protection of the public welfare. The licensing of dealers in junk is for the purpose of regulating such businesses as a protection against the crime of larceny and to provide for the detection of stolen articles. Clapp v. Ulbrich, 140 Conn. 637, 641, 103 A.2d 195, 45 A.L.R.2d 1386. Similarly, to justify the regulation under the police power of motor vehicle junk yards, it was noted in State v. Kievman, 116 Conn. 458, 465, 165 A. 601, 604, 88 A.L.R. 952, that the defendant there 'purchased old, wron out, and broken automobiles, dismantled them on the premises, made some of the parts fit for resale, and broke up many of the parts, and in the process used acetylene gas and considerable quantities of gasoline.' To be a constitutional exercise of...