Ness v. Albert, WD

• Decision Date: 06 September 1983
• Docket Number: No. WD,WD
• Parties: Stanley NESS and Joyce Ness, Respondents, v. Paul A. ALBERT, Appellant. 33654.
• Court: Missouri Court of Appeals

Page 1

665 S.W.2d 1

Stanley NESS and Joyce Ness, Respondents, v. Paul A. ALBERT, Appellant.

No. WD 33654.

Missouri Court of Appeals,

Western District.

Sept. 6, 1983.

Motion for Transfer to Supreme Court

Overruled Nov. 15, 1983.

Application to Transfer Denied

Dec. 20, 1983.

James C. Butcher, William A. Mallory, Butcher, Cline, Mallory & Covington, Columbia, for appellant.

Russell C. Still, Columbia, for respondents.

Before SOMERVILLE, Judge, Presiding, and TURNAGE and LOWENSTEIN, JJ.

SOMERVILLE, Judge, Presiding.

Plaintiffs (respondents), owners of a residential property in rural Boone County, brought an action for damages (actual and punitive) against defendant (appellant), an adjoining property owner.

Attention focuses on plaintiffs' petition in order to determine the theory of their cause of action. Doing so reveals that plaintiffs alleged in their petition that the presence of certain "rusted objects", pieces of "broken concrete", parts of "old sinks" and "stoves", and a partially burned house trailer on defendant's property were "unsightly" and "thus constitute a nuisance." Suffice it to say, evidence adduced by plaintiffs at trial tracked their petition.

The case, tried to a jury and submitted on the theory heretofore disclosed, resulted in a verdict in favor of plaintiffs and against defendant for both actual ($4000.00) and punitive ($8500.00) damages, and judgment was entered accordingly. Defendant appealed.

Several points are relied on by defendant on appeal. The first, admittedly somewhat inartfully drawn, is susceptible of being construed as questioning on appeal whether plaintiffs stated a claim or cause of action, on the ground that "unsightliness" does not constitute an actionable nuisance. So viewed, plaintiffs' objection on appeal that said point was not raised in defendant's motion for new trial, and, hence, not preserved for appellate review, is rejected. Rules 55.27(g) and 78.07 both provide that failure to state a claim or cause of action may be raised for the first time on appeal.

Plaintiffs make no claim that defendant's use of his property violated any statute, zoning law or ordinance. Thus, the apical question on appeal is whether use of one's property so as to offend the aesthetic sense of an adjoining property owner constitutes an actionable nuisance. If answered in the negative, the remaining points relied on by defendant are never reached.

It is generally recognized that unsightliness, without more, does not create an actionable nuisance. Haehlen v. Wilson, 11 Cal.App.2d 437, 54 P.2d 62 (1936); Mahlstadt v. City of Indianola, 251 Iowa 222, 100 N.W.2d 189 (1959); Crabtree v. City Auto Salvage Co., 47 Tenn.App. 616, 340 S.W.2d 940 (1960); Vermont Salvage Corp. v. Village of St. Johnsbury, 113 Vt. 341, 34 A.2d 188 (1943); Mathewson v. Primeau, 64 Wash.2d 929, 395 P.2d 183 (1964); and State Road Commission v. Oakes, 150 W.Va. 709, 149 S.E.2d 293 (1966). "[A]n owner's use of property cannot be restricted on purely aesthetic considerations." 66 C.J.S. Nuisances, § 19(d), p. 771 (1950). "It is not in itself sufficient to create a nuisance that a thing is unsightly, or that it offends the aesthetic sense." 58 Am.Jur.2d, § 44, p. 609 (1971). See also 84 A.L.R.2d 653, pp. 658-60 (1962).

To date, the appellate courts of this state have never confronted the precise issue at hand. Plaintiffs' purported reliance on Massey v. Long, ...