Mahoney v. Walter, 13361

• Citation: 205 S.E.2d 692,157 W.Va. 882
• Decision Date: 11 June 1974
• Docket Number: No. 13361,13361
• Court: Supreme Court of West Virginia
• Parties: Raymond J. MAHONEY et al. v. Eugene A. WALTER et al.

Page 692

205 S.E.2d 692

157 W.Va. 882

Raymond J. MAHONEY et al. v. Eugene A. WALTER et al.

No. 13361.

Supreme Court of Appeals of West Virginia.

June 11, 1974.

Syllabus by the Court

1. 'This Court will not consider questions, nonjurisdictional in their nature, not acted upon by the circuit court as an intermediate appellate court.' Point 1 Syllabus, Pettry v. Chesapeake and Ohio Railway Company, 148 W.Va. 443, 135 S.E.2d 729.

2. As a general rule, a fair test as to whether a business or a particular use of a property in connection with the operation of the business constitutes a nuisance, is the reasonableness or unreasonableness of the operation or use in relation to the particular locality and under all the existing circumstances.

3. The establishment of an automobile salvage yard with its incident noise, unsightliness, hazards from the presence of flammable materials, open vehicles, rodents and insects, and resultant depreciation of adjoining residential property values in an area which, though unrestricted and containing some commercial businesses, is primarily residential, together with the interference with the use, comfort and enjoyment of the surrounding properties caused by its operation, may be a nuisance and may be abated by a court of competent jurisdiction.

4. Although a business be lawful of itself, if it is operated in a primarily residential area in such a manner as to impair the enjoyment of homes in the neighborhood and infringe upon the well-being, comfort, repose, and enjoyment of the ordinary individual residing there, the carrying on of such business in such locality becomes a nuisance and may be enjoined.

5. The determination of what constitutes a residential area, from which an offensive business may be barred by injunction, depends upon the surrounding facts and circumstances of each particular case and a trial court may consider the type of locality, the tradition as to business activity conducted there, and the particular activities complained of.

6. The findings of fact of a trial court are entitled to peculiar weight upon appeal and will not be reversed unless they are plainly wrong.

Patricia H. Valentino, Wheeling, for appellants.

Schrader, Miller, Stamp & Recht, Arthur M. Recht, Wheeling, Madden & Hughes, G. Charles Hughes, Moundsville, for appellees.

SPROUSE, Justice:

This case is before the Court upon an appeal from the judgment of the Circuit Court of Marshall County in an action instituted by Raymond Mahoney and fifteen other residents and property owners in Mar-Win Place, a community in Marshall County. The plaintiffs sought to permanently enjoin Eugene A. Walter, Mary A. Walter and Cecil Walter, the defendants, from using their property for the purpose of operating a salvage yard. The defendants were permanently enjoined from operating the salvage yard by the Common Pleas Court of Marshall County, and this judgment was affirmed by an order of the Circuit Court of Marshall County. It is from the judgment of the circuit court that the defendants prosecute this appeal.

The evidence is preserved in the record by statements of evidence in lieu of a transcript submitted by both the plaintiffs and the defendants under Rule 80(e) of the West Virginia Rules of Civil Procedure. The trial court also filed a statement in lieu of a transcript. There is no serious conflict as to what comprised the evidence. The statements of evidence, however, revealed some conflict between the testimony of various witnesses.

It is apparent from the evidence that Mar-Win Place has been an established community in Marshall County for a number of years and existed as the same type locality for a long time prior to the establishment of the defendants' salvage yard business in 1969. The evidence disclosed that Mar-Win Place is primarily a residential area but was unzoned as to commercial use. Some eight or ten businesses operate in the area including a beauty shop, television repair shop and a tax service. Among the businesses operating in the area, Trenton Construction Company is the largest. It is located on the northernmost edge of the community, but testimony reflected that, because of the topography of the land, the location of the business was neither unsightly nor objectionable. The owner of Trenton Construction Company testified that he had taken great pains to plant trees and foliage to conceal the business from view. The salvage yard was operated primarily as a means of obtaining used parts from wrecked and abandoned automobiles.

The evidence for the plaintiffs revealed the following facts: Approximately one hundred vehicles were stored at random upon the defendants' property. No precaution was taken to drain the vehicles of gasoline or other flammable materials; nor was precaution taken by the defendants to prevent entrance to the yard itself or to the trunks, hoods or interiors of the stored vehicles. A wooden fence had been erected across the front of the property, but no fence had been erected to the sides or rear of the storage area.

The salvage yard is located within a minimum distance of thirty feet to a maximum distance of three hundred feet from adjoining property owners. The yard is open for business six days a week from eight o'clock a.m. to five o'clock p.m. Work was occasionally performed in the yard on Sundays. A four-inch high pressure natural gas line traverses the entire width of the property. A number of wrecked and abandoned vehicles are stacked over the line, undrained of gasoline and other flammable materials. Several of the plaintiffs and their witnesses expressed fear that this situation presented a potential fire hazard.

According to some of the plaintiffs' witnesses a number of rats and snakes had been seen in the vicinity of the salvage yard. Others testified that there were a number of children in the area, and several of the witnesses had observed them playing in or near the salvage yard.

A witness for the plaintiff testified that the noise of the wreckers disturbed her and that she had heard cars being moved in the junk yard between ten and eleven o'clock p.m. Another indicated she was disturbed by the unsightly growth of high weeds in the salvage yard.

Six of the plaintiffs testified that their property values had diminished since the commencement of the operation of the salvage yard. A real estate appraiser in the area stated that he believed that the location of the salvage yard was a deteriorating factor in the value of the Mar-Win property. One plaintiff testified that she had planned to do extensive remodeling to her home but would not do so now because of the salvage yard. Other witnesses for the plaintiff testified that the salvage yard was unsightly, that it disturbed the natural and physical beauty of the neighborhood, and that it presented a threat to the health and safety of the residents of Mar-Win Place.

The principal defense witness, Cecil Walter, testified that the salvage yard could be suitably fenced to prevent entrance of children and to make it more attractive. No action in this respect has been taken by the defendants. Walter stated that he had operated salvage yards for a number of years and had never experienced a fire. He admitted a certain amount of noise was attached to the business of pressing and baling the wrecked cars and abandoned vehicles.

Two residents of Mar-Win testified for the defendants. Neither felt the neighborhood was exclusively residential. One of the witnesses attributed depreciating property values to the presence of Trenton Construction Company, although from her testimony it was evident that the value of her property had appreciated since its purchase in 1956. The other defense witness testified that he did not believe the presence of the salvage yard would depreciate property values. According to these witnesses, the presence of rats was due to high waters along Wheeling Creek.

During the trial of this proceeding, the trial court visited the salvage yard and the surrounding Mar-Win area. Based upon the evidence adduced and the view taken, the trial court made and entered specific findings of fact. Inasmuch as its findings do not differ essentially from those recited herein as the plaintiffs' evidence, it is not necessary to restate them.

The trial court concluded that the location of the salvage yard is a threat to the health of the residents; that it destroys the natural beauty of the area; that it tends to destroy the residential quality of the area, causing a depreciation of property values; that it causes stress to the residents of the area and interferes with their comfort and enjoyment; that its presence has a deleterious effect on the neighborhood; and that all of this constituted a nuisance which he permanently enjoined.

The plaintiffs contend preliminarily that this appeal should not be considered by this Court because of the defendants' lack of procedural compliance in perfecting their appeal to the circuit court. In support of this contention, they maintain that the following procedural omissions precluded the circuit court from hearing the appeal under the provisions of Code, 1931, 58--4--15, and required its dismissal by reason of Code, 1931, 58--4--14: (1) no process or summons was issued on the appeal by the circuit court as required by Code, 1931, 58--4--11; and (2) no endorsement on the summons or certified court order, as required by Code, 1931, 58--4--12, noting that bond requirements had been met, was made by the clerk. Since the alleged procedural omissions are not documented in the record, we cannot consider this objection.

The plaintiffs, also contend that this appeal should not be heard because of the defendants' failure to assign substantive grounds of error in the motion for a new trial, the only error assigned being the loss of the original stenographic transcript. The plaintiffs argue that the failure to assign substantive grounds of error constituted a...