Mahone v. Autry, 5317

• Decision Date: 07 February 1951
• Docket Number: No. 5317,5317
• Citation: 55 N.M. 111,1951 NMSC 6,227 P.2d 623
• Parties: MAHONE et al. v. AUTRY et al.
• Court: New Mexico Supreme Court

Page 623

227 P.2d 623

55 N.M. 111

MAHONE et al. v. AUTRY et al.

No. 5317.

Supreme Court of New Mexico.

Feb. 7, 1951.

W. Peter McAtee, James R. Toulouse, Albuquerque, for appellant.

Sam Dazzo, Rolando Matteucci, Albuquerque, for appellees.

SADLER, Justice.

The plaintiffs below, appellees here, some fourteen of them, sued defendant, doing business as Autry Livestock Exchange, to enjoin as a nuisance the continued maintenance by him of certain stables and the corral surrounding them from which he conducted a riding academy within the corporate limits of the city of Albuquerque. He answered denying that he was maintaining a nuisance on his property. The trial ended in a judgment for plaintiffs enjoining the defendant from continuing operation of his stables and corral as a riding academy and giving him approximately two and one-half (2 1/2) months within which to abate the nuisance. This appeal followed.

When the defendant established his corral and stables at the point where located there were no residence properties near and the character of the neighborhood so continued for some years. However, at the time this suit was instituted and for a considerable period prior thereto the building of residence properties in close proximity to defendant's property had progressed to such an extent that it had largely become a residential area. The defendant occupied with his stables and corral the South half of Block One (1) of the Mesa Park addition to the city of Albuquerque. At varying periods he kept within his enclosures from thirty to fifty horses and burros used in conducting his riding academy and in buying and selling horses, mules and burros.

In the numerous corrals in which the animals were kept there were watering troughs from which water dripped and, becoming mixed with manure, chopped hay and mud trampled by the horses and burros created an offensive odor which proved both annoying and unpleasant to residents of the neighborhood. Large quantities of manure were permitted to remain upon the ground within the corral to add to the unpleasant surroundings and in especially dry seasons the hay, cut up from being trampled by the animals, would be blown by the wind to and on the surrounding properties to the great discomfort of the residents. By reason of the quantity of manure, urine, chopped hay, mud and dripping water in the corrals swarms of flies congregated in the area to add to the discomfort, annoyance and disease hazards suffered by residents in the vicinity of defendant's property. In addition, the constant stamping and braying of the burros caused excessive and distracting noises in the neighborhood. The conditions mentioned denied to the residents in the vicinity of the corral and stables the reasonable enjoyment of their respective properties.

Having found the facts as hereinabove recited, the court drew therefrom conclusions of law as follows:

'I. That the corrals and stables as such are not nuisances per se; that because of the operation of the stables, noise, odor, excessive number of animals, uncleanliness, unsightliness, flies and unusual filth and because the area is predominantly a residential district and causes considerable annoyance and discomfort to surrounding residents, the operation of the stables by the defendant constitutes a nuisance.

'II. That the area is predominantly residential and is becoming more so a residential district; that the use by the defendant of his property as a corral and stable interferes with residents in the vicinity in the reasonable enjoyment of their property.

'III. That the nuisance is continuous, although intermittent.

'IV. That the Court has jurisdiction of the parties and of the subject matter.'

The trial court then entered its judgment enjoining the continued operation of defendant's stables and corral as a nuisance, but, by reason of the equity arising in his favor from having established his business at its location before the plaintiffs occupied the surrounding area with residence properties, a provision was incorporated in the decree...