Parkersburg Builders Material Co.. v. Barrack

• Decision Date: 11 May 1937
• Docket Number: (No. 8537)
• Citation: 118 W.Va. 608
• Parties: Parkersburg Builders Material Company et al. v. Dan Barrack
• Court: West Virginia Supreme Court

118 W.Va. 608

Parkersburg Builders Material Company et al.v. Dan Barrack

(No. 8537)

Supreme Court of Appeals of West Virginia.

Submitted April 21, 1937.

Decided May 11, 1937.

Nuisance

Where a section of a city is not a clearly established residential community, equity will not be warranted in excluding therefrom as a nuisance an automobile wrecking business merely on the ground of unsightliness.

Appeal from Circuit Court, Wood County.

Suit by the Parkersburg Builders Material Company and others against Dan Barrack. Decree for plaintiffs, and defendant appeals.

Reversed and rendered.

Ambler, McCluer & Ambler, for appellant.

W. H. Wolfe, for appellees.

Maxwell, Judge:

This is an appeal from a decree of the circuit court of Wood County abating an alleged nuisance.

Owners of property in the vicinity of defendant's property brought the suit for the purpose of enjoining him from using his ground for outdoor storage and wreckage of abandoned automobiles. At the time of the taking of the testimony, it appeared that the defendant had parked about one hundred twenty-live old automobiles on the lot; that it is his purpose to place many more there as the requirements of his business may render necessary. Around the bounds of the lot which contains about four acres the defendant has erected a barbed wire fence of eighteen strands, seven or eight feet in height. The trial chancellor enjoined the defendant from using his property as a storage yard for old automobiles and from dismantling automobiles thereon except within an enclosed structure, and required the defendant to take down the fence.

The defendant's property is situated in the eastern section of the City of Parkersburg, about a thousand feet from the city's eastern boundary. The property fronts on the north side of Seventh Street of the city. This street is a portion of U. S. Route 50 extending entirely across the state from east to west, and is a much used highway. There are a few residences close by and several business establishments, such as three automobile service stations, a restaurant and dance hall, a creamery, and an automobile repair shop. One lot, on the southern side of the street and probably two hundred feet east, is occupied as a storage place for pipe used by a natural gas producing company.

It is in evidence that inclusive of several city blocks in the section of the city under consideration there are four hundred and seventy-five residences and seventeen places of business. These figures give to the residential properties a dominance of ninety-six per centum of all the properties involved. But it is to be noted that this result is attained by including numerous properties not of the immediate vicinity. The evidence does not disclose what would be the result of an apportionment on a more restricted territorial basis. However, from the record, it appears that on a basis of area embracing two or three city blocks, inclusive of the block in which the plaintiffs' and defendant's properties are located, the properties occupied for residence would not greatly predominate in numbers over those used for business purposes. There are many vacant lots close to defendant's lot. Presumably, they are intended ultimately to be used for residential purposes, but it would not be proper to include them in a present-day survey of the community in determining its residential or business character. Upon this factual background, we are unable to ascribe to the community a predominatingly residential characterization.

There is time-honored jurisdiction in courts of equity to abate nuisances. These include conditions which are offensive and deleterious because of noise. Snyder V. Cabell, 29 W. Va. 48, 1 S. E. 241; Ritz V. The Woman's Club of Charleston, 114 W. Va. 675, 173 S. E. 564, 182 S. E. 92. Also, equity takes cognizance of conditions which are offensive to the olfactory nerves and are therefore disagreeable and unwholesome. Rhoades V. Cook, 122 Iowa 336, 98 N. W. 122; Rowland v. New York Stable Manure Co., 88 N. J. Eq. 168, 101 A. 521; Bragg V. Ives, 149 Va. 482, 140 S. E. 656. But courts of equity have hesitated to exercise authority in the abatement of nuisances where the subject matter is objected to by the complainants merely because it is offensive to the sight. A distinction between the latter class and the two preceding ones lies in the difficulty which arises in attempting to create a standard of measurement by which to gauge whether an alleged unsightly situation shall or shall not be classed as a nuisance. The subject is necessarily one of relativity.

This case does not involve a zoning ordinance, but the subject is kindred. Zoning ordinances have been fruitful of litigation. Some of the states have upheld enactments of that kind, while courts of other states have condemned them as unconstitutional. In the case of the Village of Euclid V. Ambler Realty Co., 272 U. S. 365, 47 S. Ct. 114, 118, 71 L. Ed. 303, 54 A. L. R. 1016, a case arising from the State of Ohio, the Supreme Court of the United States declared the therein embraced zoning ordinance constitutional. In the opinion the court said: "Building zone laws are of modern origin. They began in this country about twenty-five years ago. Until recent years, urban life was comparatively simple; but with the great increase and concentration of population, problems have developed, and constantly are developing, which require, and will continue to require, additional restrictions in respect of the use and occupation of private lands in urban communities. * * * Such regulations are sustained, under the complex conditions of our day, for reasons analogous to those which justify traffic regulations, which, before the advent of automobiles and rapid transit street railways, would have been condemned as fatally arbitrary and unreasonable. And in this there is no inconsistency, for while the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coining within the field of their operation. In a changing world, it is impossible that it should be otherwise. * * *

"The ordinance now under review, and all similar laws and regulations, must find their justification in some aspect of the police power, asserted for the public welfare. * * * Thus the question whether the power exists to forbid the erection of a building of a particular kind or for a particular use, like the question whether a particular thing is a nuisance, is to be determined, not by an abstract consideration of the building or of the thing considered apart, but by considering it in connection with the circumstances and the locality. Sturgis V. Bridgeman, L. R. 11 Ch. 852, 865. A nuisance may be merely a right thing in the wrong place, like a pig in the parlor instead of the barnyard. If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control. Radice V. New York, 264 U. S. 292, 294."

Truly, in our complex American society where congestion is yearly becoming more pronounced, the changing conditions of this progressive nation require an expanding application of basic principles. The modern tendency to yield to such expansion is clearly illustrated in recent holdings of our highest court giving enlarged meaning to certain provisions of our organic law deemed to be necessary to meet changing conditions in our national life. Therefore, we need not shirk our responsibility in matters of this character when necessity for action is made clear on impelling grounds of public good, even though the result be attained through liberalization of hitherto accepted restrictions respecting the safety, peace, morals and. general welfare of the people. Evincing this fundamental truth is the circumstance that in some states where zoning ordinances were at first declared unconstitutional, later decisions have upheld them. See reference in Euclid case, supra, at p. 391, of 272 U. S.

But evolutional conceptions respecting the right and duty of society to protect itself from undesirable and disagreeable conditions are not of necessity confined to municipal zoning ordinances. There is a growing belief that that which is offensive to the view, an eye-sore, a landscape-blight, may attain such significance as to warrant equitable interposition. In Yeager v. Traylor, 306 Pa. 530, 160 A. 108, neighboring property owners sought to enjoin the erection of a public storage garage which was to have open sides and parking space on the roof. The court permitted the building to be erected but required that it be entirely enclosed, and stated further, "If it is proposed to supply parking space upon the roof an effective screen must be provided by means of a suitable balustrade or other device to hide the unsightly appearance which would be the result of such practice." Discussing the subject of aesthetics, in State ex rel. Carter V. Harper, 182 Wis. 148, 196 N. W. 451, at 455, 33 A. L. R. 269, the Supreme Court of Wisconsin said: "It seems to us that aesthetic considerations are relative in their nature. With the passing of time, social standards conform to new ideals. As a race, our sensibilities are becoming more refined, and that which formerly did not offend cannot now be endured. That which the common law did not condemn as a nuisance is now frequently outlawed as such by the written law. This is not because the subject outlawed is of a different nature, but because our sensibilities have become more refined and our ideals more exacting. Nauseous smells have always come under the ban of the law, but ugly sights and discordant surroundings may be just as distressing to keener sensibilities. The rights of property should not be sacrificed to the pleasure of an ultra-aesthetic taste. But whether they should be permitted to plague the average or dominant human sensibilities well may be...