Northwest Water Corp. v. Pennetta

• Decision Date: 04 November 1970
• Docket Number: 23468,Nos. 70--365,s. 70--365
• Citation: Northwest Water Corp. v. Pennetta, 29 Colo.App. 1, 479 P.2d 398 (Colo. App. 1970)
• Parties: NORTHWEST WATER CORPORATION, a Colorado corporation, Plaintiff in Error, v. Mary Lou PENNETTA and George Vince Pennetta, Defendants in Error. . I
• Court: Colorado Court of Appeals

Page 398

479 P.2d 398

29 Colo.App. 1

NORTHWEST WATER CORPORATION, a Colorado corporation Plaintiff in Error, v. Mary Lou PENNETTA and George Vince Pennetta, Defendants in Error.

Nos. 70--365, 23468.

Colorado Court of Appeals, Div. I.

Nov. 4, 1970.

Rehearing Denied Nov. 24, 1970.

Certiorari Denied Jan. 25, 1971.

Hayutin & Hayutin, Irving J. Hayutin, Denver, for plaintiff in error.

A. H. Hitchcock, Denver, Yegge, Hall & Evans, Denver, William F. Dressel, Fort Collins, for defendants in error.

DUFFORD, Judge.

This case was originally filed in the Supreme Court of the State of Colorado and was subsequently transferred to the Court of Appeals under the authority vested in the Supreme Court.

The parties will be referred to as they appeared in the lower court, wherein plaintiff in error was the defendant and the defendants in error were the plaintiffs.

At the close of the evidence, the trial court ruled that a water tank which was owned by the defendant constituted a nuisance as a matter of law and directed a verdict in favor of the plaintiffs. The issue of damages was submitted to the jury. Plaintiffs were awarded $2,500 for diminution in property value; $1,500 for annoyance, discomfort and inconvenience; and interest on such sums from the date the complaint was filed.

The essential question to be resolved when a private nuisance is claimed is whether the defending party has unreasonably interfered with the claimant's use and enjoyment of his property. Sans v. Ramsey Golf & Country Club, Inc., 29 N.J. 438, 149 A.2d 599. The interference which occurs must also be substantial in its nature as measured by a standard that it would be of definite offensiveness, inconvenience, or annoyance to a normal person in the community. Restatement of Torts, Explanatory Notes § 822, comment G. The record in this case reveals that at the conclusion of evidence presentation by both parties there had been laid before the trial court several considerations bearing upon the nuisance nature of the defendant's water tank. We shall comment upon these and their legal impact under the topical classifications which follow.

Legality: Without contradiction, the plaintiffs established that the defendant had constructed its water tank upon a tract which had been zoned by the governing zoning authority for only residential purposes. It was also uncontroverted that the defendant had made no attempt to seek, prior to construction of the tank, a zoning variance nor to otherwise have construction of the tank authorized by the zoning authorities following public hearings. But the fact that a zoning ordinance has been violated is not totally controlling in determining whether a private nuisance exists. Bie v. Ingersoll, 27 Wis.2d 490, 135 N.W.2d 250. Nor is a water tank by itself an absolute nuisance. City of McAlester v. King, 317 P.2d 265 (Okl.).

Physical Appearance: The tank in question is approximately 30 feet high and 42 feet in diameter and rises as a solid mass from the ground. The tank is situated upon an unfenced lot surrounded only by weeds and dirt. The presence of the tank obliterated the view from that side of the plaintiffs' home which had previously looked out upon a filling station. It also cast shadows at certain times of day across their property. In connection with these considerations, the applicable law is that causing a loss of view does not by itself make a structure a nuisance, City of McAlester v. King, Supra; nor does the blocking of the entry of light. 1 Wood, Law of Nuisances §§ 150, 155 (3d ed. 1893).

Noise: The plaintiffs and their neighbors testified, with some variance as to the degree, that the tank made noise as it filled and that rocks and bottles were continually thrown against its sides, thus creating noise. However, witnesses for the defendant testified that the the tank filled from the bottom, and that the sound of the electric pump motors and of the incoming water could only be heard at the tank itself. The plaintiff husband testified that after the tank was placed in use the water pipes within his own home made noise and shook the house. There was some evidence that this condition had ceased. In any event, as to this Court, the significant consideration on the question of noise is that the evidence on such subject varied and conflicted.

Human Comfort: Both plaintiffs testified that following construction of the tank, and because of the noises which its existence and use inflicted upon their lives, their sleep habits were disturbed and that the husband became depressed and irritable.

From these factors the trial court concluded, as a matter of law, that the defendant's water tank constituted a private nuisance as to the plaintiffs.

The trial court's ruling in the instant case was tantamount to a declaration that the defendant's water tank constituted an absolute nuisance. Under the better reasoned authorities, an absolute nuisance exists in only three types of cases. The first of these consists of those situations where a governing authority, acting within valid constitutional limitations, has designated a given...