Mathewson v. Primeau, 37162
| Decision Date | 10 September 1964 |
| Docket Number | No. 37162,37162 |
| Citation | 64 Wn.2d 929,395 P.2d 183 |
| Parties | Donald W. MATHEWSON and Cecelia M. Mathewson, his wife, and John Beheyt Betty L. Beheyt, his wife, Respondents, v. Peter A. PRIMEAU and Irene Primeau, his wife, Appellants. . Department 2 |
| Court | Washington Supreme Court |
James R. Young, Redmond, for appellants.
King & King, Albert A. King, Kirkland, for respondents.
This is a neighborhood row, being dignified into a cause celebre. The defendants live on a 13-acre tract in rural King County between Kirkland and Redmond. This has been their home since 1948, and here they have raised some 14 children with 11 of them still being at home.
They kept a boar and brood sows. They raised hogs from pigs. It is affirmed, on excellent authority, that 'Pigs is Pigs.' 1 Pigs become hogs, and neither are deodorized. The defendants also accumulated old automobiles and parts thereof, together with crates, lumber, old boxes, and discarded household appliances. The premises were not sightly.
Two neighbors, whose property had been damaged by trespassing swine and whose aesthetic senses and olfactory organs were affronted by the conditions existing, brought an action to recover their damages and to have limitations placed on defendants' use of their 13-acre tract.
The trial court entered a decree, which was not appealed from, awarding the plaintiffs damages for any physical invasion of their property by the swine, granting a permanent injunction against keeping swine in excess of one boar, two brood sows and their litters not over 6 months old, and directing certain actions to be taken by the defendants with reference to the old automobiles, the crates, etc. Thereafter, the plaintiffs, 2 claiming violations of this decree, had the defendants brought into court on an order to show cause why they should not be found to be in contempt, and the decree modified to enjoin the defendants keeping any swine. It is from the order adjudicating the defendants in contempt and fixing penalties, together with the terms and conditions attached to a purgation from contempt, that this appeal is taken. The wisdom and propriety of the original-unappealed-from decree is not before us.
Counsel, who represented the defendants in the contempt proceedings and on this appeal, did not represent them in the original proceeding and enters the arena handicapped by the prior adjudication of many of the issues which he seeks to raise.
In the original action, the trial court found that part of defendants' property was zoned R-9.6 and the remainder R-6. (This zoning was found to be under the provisions of King County Resolution No. 18801, adopted August 12, 1958, the constitutionality of which is not here attacked.) Both zones primarily authorize single family residences, with R-6 having a minimum lot size of 6,000 square feet, and R-9.6 a minimum lot size of 9,600 square feet.
The trial court further found that defendants had acquired the western part of their property in 1944 (the record shows 1948), and the rest of it was acquired in 1957; and that the defendants had, since the beginning of their occupancy, raised animals of various kinds, including swine, goats, and dogs, and had maintained as many as 100 swine of various ages on said premises. Assuming the validity of the zoning, there was, obviously, a long-established nonconforming use, 3 and there is no suggestion that any notice has ever been given by King County that such use be discontinued within a specific period, as required for the termination of such a use by the present zoning resolution. The trial court specifically refused to find that the immediate neighborhood surrounding defendants' property is predominantly residential in character, and the pictures in evidence establish clearly that it is not. The court did find, however, that the defendant's hogs
'* * * have caused and are causing obnoxious odors to arise from the premises and to pervade the immediate neighborhood, and particularly the property of plaintiffs, impairing plaintiffs' comfort and the enjoyment of their property.' ( No. 5)
In addition to awarding damages to the plaintiffs for the incidents of actual trespass, the decree contained the following provisions, which it is claimed have been violated by the defendants, and which violations are the basis of the contempt proceeding with which we are presently concerned:
A. 'Keeping swine in excess of one boar, and two brood sows and their litters not over six months old.' (In the contempt proceeding the trial court found that the defendants had 'Kept swine in excess of one boar and two sows, together with their litters of not more than six months of age, altogether amounting to as many as 35 to 40 animals at various times.')
B. 'Keeping swine closer than 100 feet from defendants' north property line.' (In the contempt proceeding, the finding was that the defendants had 'Kept swine closer than 100 feet from defendants north property line, and in particular allowed swine to run at large up to the said property line.')
In addition to thus enjoining the defendants, they had been directed to,
C. (In the contempt proceeding, the findings were that the defendants had 'Failed to pen their swine within a hogtight fence,' and 'Fed their swine in part by dumping waste vegetable products on the open ground and in part by the use of a feeding platform and feeding troughs.')
The had been directed further:
D. 'To dispose of such vehicles and parts of vehicles located on their property as are not required for their family use.' (In the contempt proceeding, the trial court found that the defendants had 'Failed to dispose of such vehicles and parts of vehicles located on their property as were not required for their family use, and in particular kept on their property from six to seven junk automobiles, including automobile bodies, several of which are now partially fenced from public view.') and to:
E. '* * * limit such crates, lumber, containers, used appliances and other similar objects as may be located on their said property, exposed to public view, to such as are reasonably appurtenant to the residential use of such property.' (In the contempt proceeding, the trial court found that the defendants had failed to make such limitation and 'in particular maintained numerous piles of stumps, scrap wood, metal, boxes and other objects not reasonably required for the residential use of their property and in full view of the public street and from the property of plaintiffs.')
Based on these findings, i. e., the parenthetical statements A through E, the defendants, by the order of April 4, 1963, here appealed from were:
1. Found in contempt for a willful failure to comply with the decree of July 20, 1962.
2. Fined $500.
3. Directed to pay to the plaintiffs an attorney's fee of $250.
The trial court also directed the modification of the decree of July 20, 1962 to enjoin the defendants from keeping, or permitting to be kept, swine of any age, provided that one pig may be kept for domestic use; and further provided:
'* * * that such pig shall be securely penned at least 100 feet south of the south margin of Northeast 100th Street and east of the west margin of the Seattle transmission line easement.'
The contempt order further provided that the defendants may be purged for their contempt and be relieved of the obligation of paying the fine and attorney's fee by: Disposing of all swine kept on their premises in excess of one; removing from their property all automobiles not currently licensed, including automobile bodies and parts of bodies; removing from their property or concealing from view all piles of wood, metals, crates, and other similar materials.
From this order, the defendants appeal urging 12 assignments of error.
There is no merit to the assignments of error directed to the findings of fact in the contempt proceeding, which we have quoted or paraphrased in parenthesis under A through E, supra. There is substantial evidence that the decree of July 20, 1962, was violated in the respects indicated. Nothing more is required to sustain the findings. Thorndike v. Hesperian Orchards, Inc. (1959), 54 Wash.2d 570, 343 P.2d 183, and the long procession of cases which follow in its train.
The defendants urge that the finding, that these violations were 'wilful and deliberate,' is a conclusion of law. Whether it be a fact or a conclusion, it is not necessary to an adjudication of civil contempt. Only 'Disobedience of any lawful judgment, decree, order or process of the court' (RCW 7.20.010(5)) need be found in this case to justify a finding of contempt. See Wright v. Suydam (1914), 79 Wash. 550, 140 P. 578. The disobedience is established.
The judgment that the defendants are in contempt is affirmed; however, the court erred in imposing a fine in a greater amount that $100. Authority for punishing civil contempt by a fine is found in RCW 7.20.020, 4 which fixes a maximum fine of $300; but before a fine can exceed $100, it must be proven that
'* * * the right or remedy of a party to an action, suit or proceeding was defeated or prejudiced thereby, * * *'
There is no such finding; and it does not appear that the right or remedy of the plaintiffs to an action, suit or proceeding was defeated or prejudiced by the contempt of the defendants. See Wright v. Suydam, supra; State ex. rel. Dye v. Reilly (1905), 40 Wash. 217, 82 P. 287. The fine must be limited to $100.
Our cases hold that RCW 7.20.100 5 authorizes a judgment for attorney's fees in civil contempt proceedings. Clausing v. Kassner (1962), 60 Wash.2d 12, 371, P.2d 633; State ex rel. Seattle Bottlers' Ass'n v....
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