Morin v. Johnson
| Decision Date | 16 August 1956 |
| Docket Number | No. 33412,33412 |
| Citation | 300 P.2d 569,49 Wn.2d 275 |
| Court | Washington Supreme Court |
| Parties | S. G. MORIN, Appellant, v. James K. JOHNSON and Jane T. Johnson, husband and wife, and James W. Johnson and Marjorie K. Johnson, husband and wife, d/b/a Johnson Tire Co., Inc., a Washington corporation, Walter C. Sivyer & Son., Co., a Washington corporation, and Bert L. Sivyer and Eleanor S. Sivyer, husband and wife, Respondents. |
George W. Young, Benjamin H. Kizer, Spokane, for appellant.
Paine, Lowe, Coffin, Ennis & Herman, W. B. Chandler, McKevitt, Snyder & Thomas, Spokane, for respondents.
This is an action to enjoin the operation of a tire recapping plant, and for damages to the plaintiff's business and property, allegedly, resulting from the operation of the recapping plant.
The plaintiff acquired the Danmor Apartments, located in Spokane, Washington, in 1945. On April 1, 1954, the Johnsons leased a building from the other defendants in this action. The building is immediately adjacent to the plaintiff's property. In September, 1954, the Johnsons commenced to operate a tire recapping plant in the building which they had leased. Both the apartment house and the building used by the Johnsons for recapping tires are located in a commercial zone (Class IV) under the zoning ordinance of the city of Spokane. The zoning ordinance prohibits in Class IV, 'All uses excluded from the Manufacturing District, [Class V] * * *' Two of the uses so excluded in Class V are: and
Plaintiff Morin alleges in his complaint that the Johnsons' business constitutes a nuisance, in that it is operated in violation of the Spokane zoning ordinance; that the maintenance and operation of the tire recapping plant, located as it is in close proximity to plaintiff's apartment house, is a nuisance in fact, in that it casts off disturbing noises, rubber dust or particles, and offensive odors, thereby endangering the comfort, repose, health and safety of the plaintiff and his tenants; and that, if the operation of the tire recapping plant is allowed to be continued unabated, the plaintiff would suffer damage to his property, the value thereof would be greatly diminished, and he would suffer substantial losses in income.
A brief description of the premises involved and of the tire recapping process is necessary for a better understanding of the issues in this lawsuit. Plaintiff's apartment house is a four-story building, approximately 42 by 130 feet, and contains thirty-six modern, furnished apartments. These are rented to tenants for ordinary residential purposes. The apartment house fronts on Third Avenue, facing south. On the defendants' premises is a one-story brick building, approximately 100 by 142 feet, the east wall of which is located on the boundary line common to the two properties. The west wall of the Danmor Apartments is eight feet east of the common boundary line. A strip of plaintiff's land, approximately 8 by 130 feet, lies between the two buildings.
Briefly, the tire recapping process, as practiced by the defendants Johnson, consists of taking a previously manufactured tire, from which substantially all of the tread design has been worn off but which still retains some use and value as a tire, buffing off the remainder of the tread design, and then applying thereto a manufactured product known as rubber cement. Thereafter, a relatively thin strip of manufactured product called camelback is placed on the carcass, and the carcass is put in a mold, where, by the application of heat and pressure, a new tread is vulcanized and fastened to the fabric of the old carcass. The new tread extends only to the shoulders of the tire, not to the bead. The recapping process does not obliterate the side-wall markings or inscriptions which indicate the size, serial number, manufacturer's name, and other insignia.
After a somewhat lengthy trial, the trial judge made comprehensive findings of fact, from which he made the following pertinent conclusions of law:
Judgment was entered in favor of the defendants, dismissing the plaintiff's complaint with prejudice. The plaintiff has appealed.
The primary contention of the appellant is that the tire recapping process, as practiced by the respondents, is within the prohibition of the Spokane zoning ordinance, and consequently, is a nuisance per se.
After hearing detailed evidence concerning the mechanics of respondents' tire recapping operation, the trial court found that no raw rubber or other raw materials are used in the process; that no new product is created; and that such process 'does not constitute the manufacture of rubber or rubber goods nor the treatment of rubber as distinguished from rubber goods.' We cannot say that the evidence clearly preponderates against the trial court's findings on this phase of the matter.
Of further significance is the trial court's finding to the effect that tire recapping was conducted in Spokane as early as 1925 or 1926, and was well known at the time of the passage of the zoning ordinance in 1929; that those charged with the enforcement of the ordinance have uniformly construed it as not prohibiting tire recapping in either Zone IV or Zone V; that numerous permits have been issued by the city of Spokane's chief building inspector for the construction or alteration of buildings which were used or were to be used for the purpose of conducting tire recapping in Zones IV and V; and that all, or substantially all, of the seventeen tire recapping establishments in the city of Spokane are situated in Zone IV or Zone V.
It is a familiar rule of statutory construction that, in any doubtful case, the court should give great weight to the contemporaneous construction of an ordinance by the officials charged with its enforcement. This is especially true where the administrative construction has been accompanied over a period of years by the silent acquiescence of the legislative body. State ex rel. Ball v. Rathbun, 144 Wash. 56, 256 P. 330; State ex rel. Pirak v. Schoettler, 45 Wash.2d 367, 274 P.2d 852; 440 East 102nd Street Corporation v. Murdock, 285 N.Y. 298, 34 N.E.2d 329; Kubby v. Hammond, 68 Ariz. 17, 198 P.2d 134.
It must also be remembered that zoning ordinances are in derogation of the common-law right of an owner to use private property so as to realize its highest utility. Such ordinances must be strictly construed in favor of property owners and should not be extended by implication to cases not clearly within their scope and purpose. Hauser v. Arness, 44 Wash.2d 358, 267 P.2d 691; City of Tulsa v. Mizel, Okl., 265 P.2d 496; Kubby v. Hammond, supra.
In view of the foregoing facts and the applicable principles of law, we feel constrained to hold that the trial court did not err in concluding that respondents' tire recapping activities 'did not and do not violate the zoning ordinance of the city of Spokane.'
We turn now to the question of whether respondents' business constitutes a nuisance in fact. The appellant does not contend that respondents' recapping plant constitutes a nuisance, wherever located--i. e., a nuisance per se; but he contends that it is a nuisance in fact, because of its present particular location.
The precise degree of discomfort that must be produced to constitute a lawful business a nuisance cannot be definitely stated. The fundamental inquiry in cases of this kind is whether the use to which the property is put is reasonable or unreasonable. Ebur v. Alloy Metal Wire Co., 304 Pa 177, 155 A. 280; Crawford v. Central Steam Laundry, 78 Wash. 355, 139 P. 56; Powell v. Superior Portland Cement Co., Inc., 15 Wash.2d 14, 129 P.2d 536; Riblet v. Spokane-Portland Cement Co., 41 Wash.2d 249, 248 P.2d...
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...of the activity. Highline Sch. Dist. No. 401 v. Port of Seattle, 87 Wash.2d 6, 17 n. 7, 548 P.2d 1085 (1976); Morin v. Johnson, 49 Wash.2d 275, 280, 300 P.2d 569 (1956). This determination requires us to look to, among other things, the character of the neighborhood where the activity occur......
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...promotion on the basis of merit. Bradley v. Dep't of Labor & Indus., 52 Wash.2d 780, 786-87, 329 P.2d 196 (1958); Morin v. Johnson, 49 Wash.2d 275, 279, 300 P.2d 569 (1956). Therefore, the legislature's silent acquiescence to the "rule of five" coupled with the legislature's express approva......
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Mall, Inc. v. City of Seattle
...by those officials charged with its enforcement. Keller v. Bellingham, 92 Wash.2d 726, 731, 600 P.2d 1276 (1979); Morin v. Johnson, 49 Wash.2d 275, 279, 300 P.2d 569 (1956). In the context of a zoning case, this court has explained the reasons for this rule of deference as The primary found......
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City of Selah v. Owens
... ... per se, we agree ... Violation ... of a statute or ordinance can be a nuisance per se. See ... generally Morin v. Johnson , 49 Wn.2d 275, 278-79, 300 ... P.2d 569 (1956); ABC Holdings, Inc. v. Kittitas ... County , 187 Wn.App. 275, 285, 348 P.3d ... ...
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§ 19.3 - Public Nuisance
...v. City of Mountlake Terrace, 87 Wn.2d 338, 552 P.2d 184 (1976) (finding urban arterial road project not a nuisance). Morin v. Johnson, 49 Wn.2d 275, 300 P.2d 569 (1956) (tire recapping plant in commercial zone not a nuisance ). Turner v. City of Spokane, 39 Wn.2d 332, 235 P.2d 300 (1951) (......
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§ 19.2 - Private Nuisance
...value Depreciation of property value by itself is not sufficient to give rise to a cause of action for private nuisance. Morin v. Johnson, 49 Wn.2d 275, 282, 300 P.2d 569 (1956). It is, however, a significant factor to be considered in determining whether an interference is unreasonable. Tu......
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Table of Cases
...867, 568 P.2d 758 (1977): 7.4(2)(c) Morawek v. City of Bonney Lake, 184 Wn. App. 487, 337 P.3d 1097 (2014): 16.6(1) Morin v. Johnson, 49 Wn.2d 275, 300 P.2d 569 (1956): 19.2(2)(c), 19.2(3), 19.2(6), 19.2(12)(a), 19.3(5)(b) Motley-Motley, Inc. v. State, 127 Wn. App. 62, 110 P.3d 812 (2005), ......