Nailor v. C. W. Blakeslee & Sons, Inc.

• Citation: 117 Conn. 241,167 A. 548
• Parties: NAILOR v. C. W. BLAKESLEE & SONS, Inc.
• Decision Date: 18 July 1933
• Court: Supreme Court of Connecticut

167 A. 548

117 Conn. 241

NAILOR v. C. W. BLAKESLEE & SONS, Inc.

Supreme Court of Errors of Connecticut.

July 18, 1933

Appeal from Superior Court, New Haven County; Edwin C. Dickenson Judge.

Action by Catherine L. Nailor against C. W. Blakeslee & Sons, Inc. for an injunction and to recover damages alleged to have been caused by the operation of the defendant of a concrete mixing plant, brought to the Superior Court in New Haven County and tried to the court, Dickenson, J. Judgment denying an injunction but awarding the plaintiff damages of $1,800, and appeal by the defendant. No error.

Philip Pond and George E. Hall, both of New Haven, for appellant.

Joseph Weiner and William Gitlitz, both of New Haven, for appellee.

Argued before MALTBIE, C.J., and HAINES, HINMAN, AVERY, and BANKS JJ.

BANKS Judge.

The plaintiff has owned since 1923 a two family house on Gibb street in New Haven which is in the center of a large industrial area zoned as an " industrial B district." There are railroad tracks about 154 feet from the plaintiff's house, and about 170 feet from Gibb street opposite the house is the factory of the Winchester Repeating Arms Company which owns the property east of the plaintiff and on the south side of Gibb street. In 1930 the defendant leased the premises occupied by it from, the Winchester Company and began the operation of a plant for the manufacture of concrete. The concrete manufactured by the defendant is a combination of stone, screened sand, and cement in proportions of four of stone, two of sand, and one of cement. The stone is brought in trucks carrying three and a half tons and is dumped into a steel plate hopper. From the hopper the stone and sand are carried on a conveyor belt and discharged into separate bins. The cement comes by rail and is discharged from the cars by an electrically driven scraper into an underground screw conveyor and is then carried to a cement bin adjoining the bins for the stone and sand. From these bins the stone, sand, and cement are discharged in the required proportions through a steel chute into a concrete mixer which is driven by gearing from a seventy horse power motor. The barrel of the mixer is rotated and after the ingredients are mixed they are discharged through a chute into a barrel mounted on a motor truck and the truck is driven off, the barrel rotating on its axis. The hopper into which the stone is dumped is located 106 feet from plaintiff's house and the dumping of the stone into the hopper makes a penetrating and nerve affecting sound which can be heard in the plaintiff's house. Upon occasions concrete which has hardened in the barrel of the mixer or upon the ground is broken up in the early hours of the morning or late at night by an air drill which makes a very loud and nerve disturbing sound. The noise from the various operations of the defendant's plant, has disturbed the plaintiff, her family, and tenants until the late hours of the night, frequently as late as 11 p. m. The operations of the defendant's plant raise cement and stone dust which is carried into the plaintiff's house and upon the walls, furniture, and curtains, and the plaintiff has been obliged to keep the windows of the rooms facing the defendant's premises closed during the summer months. Before the defendant erected its plant, the plaintiff rented her rooms for $35 a month. From July, 1930, to October, 1932, the rooms were vacant one-third of the time, and she has reduced the rental to $20 a month and has paid for the laundering of all linens, curtains, and table cloths in order to keep the tenants. The machinery and equipment of the defendant's plant are of the most modern standard type available, and its operations the same as in plants of a similar kind. The defendant has an investment of $95,000 in the plant.

The court found that the plaintiff suffered in the enjoyment of her property by reason of an unnecessary and unreasonable amount of noise, and of dust discharged upon her property, and that the defendant's plant as originally conducted imposed a burden on the plaintiff above the uses of the industrial zone in which it is located. It also found that the defendant had constantly reduced the objectionable features of the plant, and denied the injunctive relief asked, but awarded the plaintiff $1,800 damages.

The court visited the premises of the defendant and observed the operation of its plant. No correction of the finding which would materially affect the conclusions reached from the facts found, including those above stated, could justifiably be made. The failure of the court to examine the interior of plaintiff's house and the defendant's office when it visited the premises was not error, particularly as it does not appear that it was requested to do so.

The complaint alleges that the defendant uses its premises " for the purpose of making and manufacturing cement" which it appears is a prohibited use of buildings within this industrial zone. The defendant manufactures concrete, and...