Louisville Refining Co. v. Mudd

• Decision Date: 07 October 1960
• Citation: 339 S.W.2d 181
• Parties: LOUISVILLE REFINING COMPANY, Appellant, v. Dorothy MUDD, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 181

339 S.W.2d 181

LOUISVILLE REFINING COMPANY, Appellant, v. Dorothy MUDD, Appellee.

Court of Appeals of Kentucky.

Oct. 7, 1960.

Raymond F. Bossmeyer (Heidenberg & Bossmeyer), John K. Skaggs, Jr. (Skaggs, Hays & Fahey) James E. Fahey, David R. Driscoll, Jr., Louisville, for appellant.

J. W. Jones, Louisville, for appellee.

PALMORE, Judge.

The appellee, Dorothy Mudd, won a verdict and judgment awarding her $1,000 for diminution of the market value of her home as the result of an alleged permanent nuisance created and maintained by the appellant, Louisville Refining Company (hereinafter called the Company), in the operation of its petroleum refinery. The Company moves for an appeal, contending it was entitled to a directed verdict and judgment as a matter of law. It is further contended that the instructions did not fairly submit the proper issues to the jury.

The dispute involves neighboring properties in the southwest quarter of Louisville. The refinery tract lies along the west side of Southwestern Parkway and extends westwardly to the Ohio River. It is bounded on the north by Chickasaw Park and on the south by the old Ford assembly plant, now owned by a box company. Farther to the south are numerous other industrial plants, including installations of Gulf Oil Company, Ashland Oil Company, Aetna Oil Company, and Standard Oil Company, and what is known as the Fort Southworth Sewage Disposal Plant. The Louisville Refinery Company plant is the northernmost of a concentrated group of industries situated in the proximity of the Ohio River west of Southwestern Parkway. Except for a narrow strip bordering the west side of the parkway the Company's property has been zoned by the City of Louisville for heavy industrial use (that is, any lawful use).

Directly across the parkway, to the east, is the old State Fairgrounds property, which in recent years has been cut up and devoted to various commercial enterprises. This area is zoned for light industrial use, as is the aforementioned narrow strip runing along the west border of the parkway.

The Company's refinery tract extends a very short distance, perhaps quarter of a block, farther north than the old Fairgrounds property, making an offset in what would otherwise be a straight east-west line marking the north boundaries of these two industrial areas. The general territory to the north of this line (except for Chickasaw Park, a cemetery, and certain minor deviations) is zoned for residential use and has been almost completely developed and occupied for that purpose.

Mrs. Mudd's home is located east of the parkway on the south side of Winnrose Way (formerly Fordson Way), which is near the south edge of the residential area and runs an east-west course parallel with and a half block north of the old Fairgrounds tract, ending at the east side of the parkway opposite the above mentioned offset (the offset being the northeast corner of the Company's refinery). It is the first home east of the parkway but is not on the corner, as there is a vacant strip of about a half block, zoned light industrial, along the east side of the parkway at this point, terminating at the south line of Winnrose Way. The house was built in 1950 and bought by Mrs. Mudd in the same year for $6,800. The portion of the refinery plant alleged to the source of nuisance is 160 feet west of the center of the parkway and 420 feet from Mrs. Mudd's home.

The Company has operated its refinery at the existing site continuously since 1928. Much of its property is occupied by storage facilities. The refinery units are situated on the portion of the property nearest Southwestern Parkway. The original refinery consisted of a 'skimming' or 'crude' unit and a 'thermal' unit. Technicological developments in the industry dictated the addition of a 'catalytic cracking' unit in 1952 and a 'platformer-unifying' unit in 1957. These various refining plants involve the use of gas furnaces, electrically operated pumps and compressors, and various control valves, operating around the clock and necessarily producing a composite noise variously characterized by the Company's plant engineer as a 'humming' sound, by Mrs. Mudd as a metallic grating or roaring noise, and by one of her witnesses as two noises, 'a roaring sound and also a clanging, rhythmic sound that is reminiscent of a freight train.'

Mrs. Mudd testified that there was noise from the plant before 1957 but that it did not become annoying until that year (when the 'platformer-unifying' unit went into operation). She said it made her nervous, interfered with her sleep, and required that she keep the windows closed. She denied hearing any other industrial noises at her home. Though she claimed also that there was a vibration from the refinery, the absence of such a condition was definitely established and it was not submitted to the jury as an element of the alleged nuisance. Two qualified witnesses testified that the presence of the offensive noise reduced the market value of the property by $1,250 and $900, respectively.

Though an attempt was made to question the necessity of placing the 'platformer-unifying' unit at its particular location with relation to the parkway, as against setting it farther westward, there was no evidence of probative value to refute the Company's testimony that no other location was feasible and that the unit is essential to the continued existence of the business. It is a complex, substantial, permanent and obviously expensive structure. There also was no evidence of substance to the effect that the noise is not normal or usual to this type of operation or that there is any feasible way to eliminate it. Therefore, the problem is not within that category of cases where a lawful business is so operated as to cause unnecessary annoyance. On the contrary, it is the case of a lawful business properly located and prudently operated but nevertheless giving offense, by way of noise, to the owner of neighboring residential property.

In the whole field of law there is nothing more difficult to capture within the confines of a workable definition than the concept of nuisance, nothing more dependent on the peculiar facts of the given case. Like the ligendary and elusive gadfly Tyll Eulenspiegel, it scoffs at the conventionalities of the law.

'Nuisance, which means literally annoyance, may be described as a wrong done to one by disturbing him in the enjoyment of his property or in the exercise of a common right. But the term eludes exact definition because, as has been well said, 'the controlling facts are seldom alike, and each case stands on its own footing' * * *. What amount of annoyance or inconvenience, then, will constitute a nuisance is largely a question of degree; the injury, of course, must be real and substantial and in the case of private nuisance must be such as to interfere materially with ordinary physical comfort or the reasonable use of property.' W. H. Lloyd, 'Noise as a Nuisance,' 83 U. of Pa.L.Rev. 567, 580 (1934).

"Nuisance' has remained an isolated island of liability without fault and courts have resorted to 'nuisance' terminology to impose liability when prompted by policy considerations. * * *' Harper & James, 'The Law of Torts,' Vol. I, p. 69.

The plaintiff's recovery in this case is grounded on the authority of Kentucky-Ohio Gas Co. v. Bowling, 1936, 264 Ky. 470, 95 S.W.2d 1, and Kentucky & West Virginia Power Co. v. Anderson, 1941, 288 Ky. 501, 156 S.W.2d 857. In the Bowling case the right of recovery was recognized (though reversed on erroneous measure of damages) where the plaintiff's home in a thinly populated vicinity 2 1/2 miles from town was subjected to vibration from a power plant and pumping station constructed across the road from the residence. The court said the question of whether a lawful business creates a nuisance depends on the reasonableness vel non of its conduct 'in the particular locality and in the manner and under the circumstances of the case.' In the Anderson case [288 Ky. 501, 156 S.W.2d 858] a $500 verdict for plaintiff was affirmed where the defendant erected within a distance of 15 feet from the plaintiff's home at the edge of Pikeville an electric sub-station that produced a constant buzzing or humming. In rejecting a contention that the instructions should have submitted the question of whether the noise was 'excessive or unreasonable in degree' the court said, 'It is no defense that skill and care have been exercised and the most improved methods and appliances employed to...