Oak Haven Trailer Court, Inc. v. Western Wayne County Conservation Ass'n
| Decision Date | 26 April 1966 |
| Docket Number | Nos. C,No. 1,s. C,1 |
| Citation | 141 N.W.2d 645,3 Mich.App. 83 |
| Parties | ., a Michigan corporation, et al., Plaintiffs-Appellants, v. WESTERN WAYNE COUNTY CONSERVATION ASSOCIATION, a Michigan corporation, and Wayne Conservation Land Company, a Michigan corporation, Defendants-Appellees. Clarence B. STANBURY et al., Plaintiffs-Appellants, v. WESTERN WAYNE COUNTY CONSERVATION ASSOCIATION, a Michigan corporation, and Wayne Conservation Land Company, a Michigan corporation, Defendants-Appellees. al. 267, Cal. 268. Court of Appeals of Michigan, Division |
| Court | Court of Appeal of Michigan — District of US |
Dale D. Libby, Detroit, for appellants.
John L. Crandell, Plymouth, for Wayne Conservation Land Co. Aldred L. Meredith, Detroit, for Western Wayne Co. Conservation Ass'n, Roland L. Olzark, Detroit, of counsel.
Before LESINSKI, C.J., and GILLIS and QUINN, JJ.
This case comes on appeal from a conditional judgment in the circuit court for the county of Wayne in favor of the defendants, and a dismissal of the plaintffs' case with prejudice. For brevity, defendants will hereafter be referred to as gun club.
The gun club was formed in 1938 and in 1942 established headquarters on 40 acres in Nankin township. It acquired a building in 1945 and a liquor license in 1957. In 1961 the gun club began looking for a new site for its activities as the former site was about to be condemned by the Wayne county road commission for establishment of a park. The property settled upon was a 62 acre tract, 40 acres in Plymouth township, Wayne county, and 22 acres in Salem Township, Washtenaw county, described to wit:
The NW 1/4 of SW 1/4 of section 19, Plymouth township, Wayne county, Michigan (40 acres) and part of the NE 1/4 of the SE 1/4 of section 24, Salem township, Washtenaw county, Michigan (22 acres).
The character of this area is fully described in Smith v. Plymouth Township Building Inspector (1956), 346 Mich. 57, at p. 61, 77 N.W.2d 332, at p. 335, wherein the Court citing the record stated:
"The evidence establishes conclusively that the area of the proposed site (referring to Oak Haven Trailer Court) is largely agricultural and open country, and that there is no residential or industrial development in the district itself and surrounding districts."
The evidence in this case reveals that the character of the area has not changed appreciably in the past 10 years, except for the addition of one of the plaintiffs herein, the Oak Haven Trailer Court, Inc. (which was a party in the prior Smith Case, supra,) and the addition of the gun club.
After a public hearing late in 1961, the gun club received a building permit from Salem township board of zoning appeals for the 22 acres. Property owners contested the issuance of the permit, and defendants here were allowed to intervene in that suit. See Rockwood v. Township of Salem (1964), 373 Mich. 332, 129 N.W.2d 380. To avoid further dispute, the gun club constructed its clubhouse on the portion of its property in Plymouth township. The property in Plymouth township is zoned agricultural and use as a gun club is contemplated within this zoning designation.
The gun club set up 3 firing ranges, a 50 yard pistol range, a 100 yard rifle range and a 200 yard rifle range, all of which were built according to National Rifle Association specifications. The latter two ranges include side walls of 8 to 10 and a backstop on the 200 yard range that was 35 in height and over 100 in depth. A 'U' bar has also been built. It is designed to prevent shooting over the backstep. These ranges were set up in an easterly direction with the firing line on the Wayne-Washtenaw county line.
In the spring of 1962, the gun club was in operation and a 'big bore shoot' was held on May 19 and 20, 1962. In this competition .30 caliber rifles were used on the 200 yard range. On the Monday following, one of the plaintiffs, Clyde Smith, requested that the gun club change the direction of the firing ranges. He was told that this would be an impossible task financially.
On June 1, 1962, this suit was begun by the Oak Haven Trailer Court, Inc., et al. (hereinafter referred to as Oak Haven) in which they sought a permanent injunction against the defendants' use of its property for discharging of firearms or serving of food and beverages. The trial court, on June 1, 1962, granted a temporary restraining order, enjoining the defendants from using their property 'or any part thereof, for the service of food and beverages to themselves or others or for the discharge of firearms, either individually or in rifle meets, or in similar contests.' This restraining orer was modified on stipulation of the parties to allow the serving of food and drink and was so ordered in Wayne circuit court on June 28, 1962. A later modification allowed the use of the gun ranges except no meets were allowed.
On September 11, 1962, a second suit was filed against the gun club by Clarence Stanbury, et al., at which time another judge of the circuit court for the county of Wayne issued a temporary restraining order. Upon being informed of the prior litigation begun by Oak Haven, the restraining order of September 11, 1962 was set aside, sua sponte on September 14, 1962. On October 9, 1962 the two cases were consolidated on order of the circuit court and assigned for trial.
The trial of this case was extensive, involving 27 days of actual trial, extending from June 25 to December 7, 1962. There were about 2,000 pages of testimony taken from 60 witnesses with 47 exhibits being introduced. In addition, the court viewed the premises in question, the court present at simulated meets on August 5, 1962 and October 13, 1963. The second simulated meet was held at the trial court's request to supplement the testimony with sound measurements taken on plaintiffs' properties of the noise from the ranges.
The trial court filed its written opinion January 9, 1964. Pursuant to it a conditional judgment in favor of the defendants was entered February 3, 1964. It allowed the defendant gun club to continue operations on its 62 acre tract if it complied with the following requirements:
1. That the backstop be raised 5 to a height of 40 on the 200 yard range.
2. The noise level of the gun firing shall note exceed 88 1/4 decibels at distance of 1/4 mile.
3. Hours of shooting shall be limited daily between 9 a.m. and 6 p.m., on Sundays from 10 a.m. to one hour after sunset.
4. No 300 yard range shall be used without prior approval of the trial court, after adversary proceedings.
The court retained superintending control of the questions raised in this case. This is the judgment appealed from.
This formerly being a chancery matter, an appellate court reviews the record de novo, though great weight is given to the determinations made by the original trier of fact. See Borsvold v. United Dairies (1957), 347 Mich. 672, 81 N.W.2d 378, 82 A.L.R.2d 406; O'Connor v. Jersey Creamery Co. (1933), 265 Mich. 219, 251 N.W. 333; Hartka v. Hartka (1956), 346 Mich. 453, 78 N.W.2d 133; Schuur v. Berry (1938), 285 Mich. 654, 281 N.W. 393.
The questions raised on appeal are whether the gun club itself or the noise from the defendants' ranges and clubhouse, as well as the danger of the range, constitutes a nuisance.
The question of what constitutes a nuisance is one that cannot be considered in a vacuum. The activity must be viewed with regard to surrounding circumstances. As the Michigan Supreme Court said in Obrecht v. National Gypsum Co. (1960), 361 Mich. 399, 417, 105 N.W.2d 143, 151:
'Nothing in the law of nuisance is better settled than this rule: That the locality and surroundings of the challenged operation or thing become an important factor in arriving at proper judicial decision of existence or non-existence of an actionable nuisance. That which would be actionable or abatable in one place or locality might not be such in another. The oft-quoted observation of the Supreme Court (Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 388, 47 S.Ct. 114, 118, 71 L.Ed. 303 (54 A.L.R. 1016)) comes to mind here: 'nuisance may be merely a right thing in the wrong place, like a pig in the parlor instead of the barnyard."
Thus the lay of the land, the character of the area, the zoning ordinances, and all the surrounding circumstances are of extreme importance in determining whether the gun club and its activities do in fact constitute a nuisance. The evidence in this case as well as the opinion in Smith v. Plymouth Township Building Inspector, supra, reveals that the community surrounding the gun club is not highly developed. It is an area in which deer hunting is carried on in season. Adjacent to the gun club is the Detroit House of Correction. The property purchased by the gun club was swampy in nature and not suitable for development. The zoning of the area can also help in determining for what purposes particular property is suited. As stated in 54 Mich.L.Rev. 266, 271 (1955):
In this case the zoning of the area was agricultural and not residential. A gun club...
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