Nesbit v. Riesenman

• Decision Date: 06 January 1930
• Docket Number: 86
• Citation: 148 A. 695,298 Pa. 475
• Parties: Nesbit et al. v. Riesenman et al., Appellants
• Court: Pennsylvania Supreme Court

148 A. 695

298 Pa. 475

Nesbit et al. v. Riesenman et al., Appellants

No. 86

Supreme Court of Pennsylvania

January 6, 1930

Argued September 30, 1929

Appeal, No. 86, March T., 1929, by defendants, from decree of C.P. Venango Co., Aug. T., 1925, No. 1, on bill in equity, in case of John L. Nesbit et al. v. Joseph Riesenman, Sr. individually, and Joseph Riesenman and John C. Brecht trading as R. & B. Motor Company. Affirmed.

Bill for injunction. Before McLAUGHLIN, P.J. (Chancellor), specially presiding, and PARKER, P.J.

The opinion of the Supreme Court states the facts.

Decree awarding injunction entered. Defendants appealed.

Error assigned, inter alia, was decree, quoting it.

Decree affirmed at the cost of appellant.

Carl E. Glock, with him J. Merrill Wright and Reed, Smith, Shaw & McClay, for appellants. -- Under the facts in this case, defendants' business does not come within the rule that a public garage in a residential district is a nuisance per se: Collins v. Iron Works, 227 Pa. 326; Houghton v. Kendrick, 285 Pa. 223; Burke v. Hollinger, 296 Pa. 510; Mitchell v. Guaranty Corporation, 283 Pa. 361; Carney v. Oil Co., 291 Pa. 371; George v. Goodovich, 288 Pa. 48.

The court below, delimiting a very small zone as the district involved, found it to be a "distinctly residential section," and, without looking into additional circumstances, applied the public garage rule, which it quoted from Ladner v. Siegel, 293 Pa. 306, and declared defendants' business to be a nuisance per se.

Enjoining the defendants in this case on the ground that their business is a nuisance per se deprives defendants of their property without due process of law, and is a denial of the equal protection of the laws.

Quincy D. Hastings, with him J. Merrill Wright and John L. McBride, for appellants. -- The rule as counsel understands it and as apparently understood by the lower court, implies that a business such as defendants' is a nuisance per se in every district which is residential, and, that being true as a matter of law, the courts of this Commonwealth will not permit individual suitors to show whether or not the business is in fact injurious. That rule is in effect a zoning ordinance having for its purpose the exclusion of public garages, such as defendants', from residential districts, regardless of whether the garage be in fact a nuisance.

Such a rule is without sanction of law; is not the act of the legislature, the only part of our government having legal authority to enact such a rule; and, aside from whether the rule be reasonable or arbitrary, it has no binding force on our courts because this court was without constitutional or statutory power and authority to formulate such a rule as a guiding and determining rule of law.

Neither this court nor our court of common pleas possesses general chancery powers: Hogsett v. Thompson, 258 Pa. 85; Sparhawk v. Ry., 54 Pa. 401; Cumberland R.R. Co.'s App., 62 Pa. 218; Rhymer v. Fretz, 206 Pa. 230.

The right and power to change the common law as to nuisances is with the legislature only, and is not inherent in our courts: Pittsburgh v. Keech Co., 21 Pa.Super. 548; Albright v. Albright, 228 Pa. 552.

It has always been the rule that courts, both of equity and common law, decide peoples' rights and are not permitted and very seldom attempt to legislate concerning mere questions of policy, local or general: Rhodes v. Dunbar, 57 Pa. 274.

Even the legislature may not arbitrarily say that a lawful business, which is not an infringement on public safety and is not a nuisance in fact destroying rest and peace, or injurious to the health of persons living near by, is a nuisance as a matter of law, and then arbitrarily prohibit the same: Yates v. Milwaukee, 10 Wall. 497.

The rule of Ladner v. Siegel not only attempts to establish a uniform rule or policy, but further declares that it will not permit experiments in separate instances to determine whether or not there has been wrong done and harm suffered because such litigation might end in frequent disputes. The practical effect of such a rule is to forearm plaintiffs and inform them that all they need to do is to make a complaint and that defendant will not be permitted to show his act is not injurious: Wood v. McGrath, 150 Pa. 451.

It will be noted that in this case practically all of the neighbors have testified as to the harmless nature of defendants' business as the same has been conducted in their midst and this record abundantly shows that this evidence was disregarded because of the lower court's belief that it was bound by the statement of this court that a business, such as defendants', was a nuisance per se in a residential district.

A nuisance per se, as relating to private persons, is an act or use of property of a continuing nature offensive and legally injurious to health and property or both.

A. R. Osmer, with him N. F. Osmer, for appellee. -- That the district is in fact clearly residential is abundantly proven: Hamilton v. Bates, 284 Pa. 513; Krocker v. Mill Co., 274 Pa. 143; Mitchell v. Guaranty Corp., 283 Pa. 361; Tyson v. Coder, 83 Pa.Super. 116.

A chancellor's findings are as conclusive as verdict of jury: Houghton v. Kendrick, 285 Pa. 223; Gordon v. Pettey, 291 Pa. 258; Ladner v. Siegel, 293 Pa. 306.

That neither the findings of fact, nor the conclusions and decisions of the court below, nor the numerous decisions of this court, holding the operation of a public garage in a residential district of a city to be a nuisance per se, warrant the allegation of counsel that this constitutes an "arbitrary and an unwarranted attempt" at legislation on the part of this court, is so conclusively answered by the numerous opinions of this court, in similar cases, as to render further discussion wholly unnecessary. See especially: Burke v. Hollinger, 296 Pa. 510; Ladner v. Siegel, 293 Pa. 306; Prendergast v. Walls, 257 Pa. 547; Hohl v. Modell, 264 Pa. 516; Mitchell v. Guaranty Corp., 283 Pa. 361; Unger v. Edgewood Garage, 287 Pa. 14.

This injunction is not in conflict with the 14th Amendment of federal Constitution: Phillips v. Donaldson, 269 Pa. 244; Mitchell v. Guaranty Corp., 283 Pa. 361; Penna. Co. for Ins. on Lives v. Sun Co., 290 Pa. 404; Ladner v. Siegel, 293 Pa. 306; Zahn v. Los Angeles, 274 U.S. 325; Euclid v. Ambler Co., 272 U.S. 365; Junge's App., 89 Pa.Super. 548; Reinman v. Little Rock, 237 U.S. 171.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE KEPHART:

Appellant's major question is that this court did not possess the power under the Constitution and the law to announce the rule in Ladner v. Siegel, 293 Pa. 306, that the "intended use [of a building as a public garage in a residential district] is a nuisance per se, . . ., and to permit experiments in separate instances to determine the extent of the harm suffered will lead to endless disputes"; and that the application of the rule violates the 14th Amendment to the federal Constitution in that it deprives defendants of their property without due process of law and denies to them equal protection of the law.

Counsel evidently misunderstands the effect of our decisions in relation to nuisances, as they embrace a very limited subject, -- buildings for the storage of a large number of cars used generally for pleasure or commercial purposes. Had we announced, without a foundation on which to base it, that public garages in residential districts would be prohibited as nuisances per se, defendant might question our power, but the court did not proceed on that theory.

When automobiles came into use extensively, and complaints were brought to this court as to the occupation of buildings for storage in residential locations, we said that an owner has a right to any use of his property, barring malice and negligence, unless by its continuance he prevents his neighbors from enjoying the use of their property; that a public garage business was lawful and would not be a nuisance in anticipation unless its conduct in certain localities or surroundings was known generally to result in injury to property, health or safety, regardless of how carefully it was conducted. See Burke v. Hollinger, 296 Pa. 510, 516, and Ladner v. Siegel (No. 1), 293 Pa. 306. It was held, from a review of the earlier decisions, that the use of a building as a "public" garage was inseparable from noise, odor, danger, pounding metal, testing engines, speeding motors, smoke, vapors from gas, danger to school children and pedestrians in the highways, and it was found to be a nuisance in a residential location, being detrimental and injurious to health, safety and property; the repetition of such use as illustrated in the several cases was uniformly followed by similar effects, and became generally known and regarded in such localities as nuisances, therefore we held such uses to be a nuisance per se. Attention is directed to Penna. Co. v. Sun Co., 290 Pa. 404, 410, 411, for the definition approved in this State and our treatment of nuisances of the kind under consideration.

Later, the "nuisance per se" rule was held not to apply to buildings devoted to storage purposes in business sections of cities of the larger size, or those sections in such cities largely commercial yet partly residential (Hollinger's Case), and still later, to residential districts composed of apartments of all kinds, hotels, clubs, schools and other buildings as limited and described in Ladner v. Siegel (No. 3), 296 Pa. 579. Nevertheless, in other residential districts we have continued to hold that the rule does apply.

The expression that a public garage is a "nuisance per se in a residential district" was evolved from common law principles...