Martin v. Williams, 10758

• Decision Date: 13 March 1956
• Docket Number: No. 10758,10758
• Citation: 93 S.E.2d 835,141 W.Va. 595,56 A.L.R.2d 756
• Court: West Virginia Supreme Court
• Parties: , 56 A.L.R.2d 756 C. V. MARTIN et al. v. Andrew C. WILLIAMS et al.

Page 835

93 S.E.2d 835

141 W.Va. 595, 56 A.L.R.2d 756

C. V. MARTIN et al. v. Andrew C. WILLIAMS et al.

No. 10758.

Supreme Court of Appeals of West Virginia.

March 13, 1956.

Syllabus by the Court.

1. The establishment of what is commonly known as a 'used car lot' with its incident noise, light, unsightliness and resultant depreciation of adjoining residential property values in an area which, though unrestricted and without the corporate limits of a town or city, was across a highway from zoned residential property lying within the corporate limits, and which area had previously been exclusively residential on both sides of the highway for a distance of approximately one-fourth of a mile, and which 'used car lot' greatly interferes with the use, comfort and enjoyment of such surrounding residential properties, constitutes a nuisance in fact, and may be abated by a court of equity.

2. 'A finding of fact by the trial court from conflicting depositions is entitled to peculiar weight, and will not be disturbed by the appellate court unless manifestly wrong.' Pt. 2, Syl., Poling v. Bennett, 103 W.Va. 456 .

Sidney J. Kwass, Edmund C. Stone, Jr., Bluefield, M. E. Boiarsky, Charleston, for appellants.

Joseph M. Sanders, Arthur F. Kingdon, Bluefield, for appellees.

BROWNING, President.

This is an appeal from a decree of the Circuit Court of Mercer County perpetually enjoining the defendants Williams and Othling from 'conducting, operating and maintaining at its present location the used car sale business described in the pleadings and the evidence; and it is further adjudged, ordered and decreed that said defendants shall, within thirty days from the date of entering the decree, remove from said tract or parcel of land all automobiles, trucks, light poles, wires, lights, equipment, installations and structures used by them in the conduct of the used car sales business.'

The property of the defendants consists of an 11.75 acre tract fronting 312.6 along the south line of a portion of U. S. Routes 21 and 52, known locally as the Cumeberland Road. The northern line of the Cumberland Road is also the southern corporate limit of the City of Bluefield. The plaintiffs Martin and Lilly reside on the northern side of the road, within the corporate limits, and in an area zoned by the City of Bluefield as residential, Martin directly opposite a portion of the frontage of the defendants, and Lilly the second lot to the east of Martin. The plaintiffs Doak, Moyer and Richardson live on the southern side of the road, Doak adjoining the land of defendants to the west, and Moyer adjoining the land of defendants to the east. Richardson adjoins Moyer to the east. All land lying on the southern said of the road is without the corporate limits of Bluefield, and, of course, not zoned for any purpose, and no restrictions are contained in the deeds thereto. The plaintiff Richardson built his home in 1923, and, at the present time, has 'considerably more than $50,000' invested in it; Doak, in 1946-47, more than $40,000; Lilly, 1948, Martin, 1949, $18,500; and Moyer, 1950-1951, $48,400.

Prior to 1953, there were no businesses located along the south side of the road from the intersection of Cumberland Road with Bland Road, to the east, to the intersection with Jefferson Driver to the west, a distance of approximately 1,000 feet and the area in which the plaintiffs and defendants have their properties. However, there was a small grocery store just to the east of Bland Road, and farther on, approximately a mile, a motel. To the west there was a group of business establishments at the intersection of Cumberland Road and Washington Street, approximately 300 feet west of Jefferson Drive. Farther west are located several farms which, from aerial photographs, have fine homes and well tended acreages. Due to the topography, none of the business establishments in either direction were visible from the properties of the plaintiffs, with perhaps the exception of Doak. Cumberland Road is heavily travelled, approximately 3,000 vehicles a day, and there is evidence that other business establishments and a new high school are contemplated along the southern side of the road within a mile on either side of the plaintiffs.

Defendant Williams, after a long search for a suitable site on which to expand his automobile business, acquired his land from one Matz in 1953. Matz had acquired the land from one Peters, who had offered to sell to some of the plaintiffs. Matz, prior to Moyer's building his home, had conveyed to him the information, directly or indirectly, that he had acquired the land for business purposes, having in mind a motel, and offered to either sell that land or buy Moyer's land, which offer was declined.

After acquiring the land from Matz, defendants proceeded to install a 'used car lot' on the front portion of the property. A small office was built, painted a vivid yellow and vermillion, three parallel strings, of approximately 100 bulbs each, of electric lights were suspended at a height of approximately 15 feet, a canopy sufficient for one automobile to be placed thereunder, and an advertising banner and streamers were placed on the lot. As described by one witness, it was a 'typical, well-kept used car lot', and, by another, that it had a 'garish, carnival atmosphere.' The lot was open from 8:30 a. m. to 8:30 p. m., Monday through Saturday, and from 12:30 until 8:30 p. m. on Sunday. The 8:30 closing hours fluctuated with the presence or absence of customers on the lot.

Plaintiffs testified that the strings of lights, which were kept on until approximately 9:00 p. m., after which one half of the back row of lights were kept burning, lighted up their yards and porches, and in some instances the inside of their dwellings, including the bedrooms, and greatly interfered with, if not destroying, their use and enjoyment of their properties; that the noises, incident to raising and lowering of automobile hoods, testing of brakes, voices of customers and employees (in two instances profanity); the unsightliness of some of the merchandise the attendant incidents of such a business depreciated the values of the properties some 50% in most instances, and slightly less in regard to the Doak and Lilly properties; and constitutes a nuisance. The plaintiffs, while varying as to resentment of various types of business which might be established on the lot, concur in their abhorrence of the used car business, and, generally, would resent the properties' use for anything other than residential purposes.

Defendants, during the pendency of the suit, installed hooded flood lights for the purpose of all night lighting, which lights are directed down into the lot, and cast no light on plaintiffs' properties. However, since there is no testimony that the string lights were removed, it may be presumed that they are still burned until approximately 9:00 p. m. Defendants also minimize any noise that results from the conduct of the business, and state that it is small in comparison to the noise normally arising from the highway in front of plaintiffs' properties. Defendant Williams maintained a table showing the number of people visiting the lot during a twenty day test period which shows that the maximum number of people in one day was 65, the minimum, 11; the daily average, 30, and the hourly average 11. He further stated that the present use as a used car lot is temporary, that he contemplates erecting a modern new car showroom and office with service building, and, perhaps erecting a shopping center in the central part of the property. Testimony was offered in his behalf that this area was an excellent business location, and, as heretofore mentioned, other businesses have acquired or are attempting to acquire property along the southern edge of Cumberland Road.

The court found that the used car business in this area constitutes a nuisance, and granted the injunction above quoted. The operation of a used car lot is a lawful business, and, as a general rule, it cannot be a nuisance per se. However, from the circumstances surrounding its location and operation, it may become a nuisance per accidens or a nuisance in fact. The threshold question for determination then is whether the trial chancellor was justified from this record in holding that the defendants' used car lot was placed in an exclusive residential area. Much of the hundreds of pages of testimony taken, and many of the scores of exhibits and photographs introduced as evidence, are directed to that question. The distances estimated in the testimony and the contentions with regard thereto in briefs of counsel do not clearly show the proximity of certain business establishments situated on the south side of Cumberland Road, and their proximity to the area in question.

Defendants' Exhibit No. 1, prepared by Elmer C. Barton, Civil Engineer, on February 3, 1954, showing the entire City of Bluefield, and the location of the residences, business establishments and vacant areas sought of Cumberland Road, is revealing. Beginning at a point approximately one mile east of the used car lot, there is a motel, and between the motel and the used car lot, there is only one business establishment, that being a one story brick building, the Henderson Grocery Store, which is approximately 600 feet east of the nearest residence of the plaintiffs. Continuing along Cumberland Road toward the west beyond the used car lot, the next business establishment is a two story asbestos shingle building operated as a grocery store by a man named Burton. That store is approximately 350 feet west of the nearest residence of plaintiffs. The Burton Grocery Store and a gasoline service station are on or near the southeast corner of Cumberland Road and Bland Road. Route 52 turns south at this point along Bland Road, and in close proximity to Cumberland Road there are several business establishments, such as a plumbing...