R & D Trucking Co., Inc. v. Carter
| Decision Date | 24 January 1992 |
| Citation | 592 So.2d 1040 |
| Parties | R & D TRUCKING COMPANY, INC. v. Charles L. CARTER, et al. 1901920. |
| Court | Alabama Supreme Court |
Roy Hasseltine, Florence, and William H. Mills of Redden, Mills & Clark, Birmingham, for appellant.
Curtis Simpson, Florence, for appellees.
Is a truck terminal a nuisance at all times and under all circumstances, regardless of location or surroundings?
The defendant appeals from an order granting a permanent injunction against an anticipated nuisance, pursuant to Ala.Code 1975, § 6-5-125. The order "restrained and enjoined [R & D Trucking Company, Inc.] from any construction [on a certain] 15-acre tract of land, and restrained and enjoined [that company] from constructing any truck terminal on said rural property located on Gate 6 Road, Colbert County, Alabama."
R & D Trucking Company, Inc. ("R & D"), purchased an 80-acre parcel of land in Colbert County, which adjoined or was near parcels of property owned by the plaintiffs. The plaintiffs maintained residences on their respective parcels. The area in which those parcels and R & D's 80-acre parcel are located is rural and is not zoned. R & D's land abuts a public road known as Gate 6 Road. The plaintiffs live on or near Gate 6 Road. Gate 6 Road derives its name from the fact that it leads to Gate 6 of the Reynolds Metals Company plant located in the area. Gate 6 Road is approximately three-quarters of a mile long and is the only road providing access to the primary loading area for trucks at the Reynolds Metals plant. There are no restrictions imposed by the State of Alabama or Colbert County on the use of this road by trucks. This road has been used by trucks serving the Reynolds Metals plant for many years. It is also the road used by employees on the three daily shifts at the Reynolds Metals plant to go to and from work.
R & D began construction of a truck terminal on 15 acres of its 80-acre parcel. The plans called for the construction of a safety and personnel building on this 15-acre parcel nearest Gate 6 Road. A truck terminal was to be built behind that building. Driveways were to be paved, but some areas were to be covered with chert and some landscaped. The balance of the 80-acre parcel was not to be used for the terminal.
The eight members of this Court who were members of this Court on December 6, 1989, had occasion to rule on the authority of a trial court to enjoin an anticipated nuisance pursuant to § 6-5-125. McCord v. Green, 555 So.2d 743 (Ala.1989). McCord v. Green is definitive and comprehensive in its treatment of this subject, and the trial court's judgment must be reversed on the authority of that case.
Although the facilities being constructed in McCord v. Green (a wood treatment plant) were different from those being constructed in this case (a truck terminal), the essential facts and circumstances involved in McCord v. Green--the location of a lawful and useful business in an unzoned rural area devoted primarily to residential and agricultural purposes--are practically identical to those in this case.
In McCord v. Green, 555 So.2d at 746, this Court wrote:
"This Court reaffirms that the extraordinary powers authorized by § 6-5-125 should be exercised only when the complainant has shown to a reasonable degree of certainty that the act or structure he seeks to enjoin will be a nuisance per se."
In McCord v. Green, 555 So.2d at 745-46, this Court also provided a definition of "nuisance per se" and some elaboration on that definition:
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Parker v. Ashford
...See, e.g., Gilmore v. City of Monroeville, 384 So.2d 1080 (Ala.1980); McCord v. Green, 555 So.2d 743 (Ala.1989); and R & D Trucking Co. v. Carter, 592 So.2d 1040 (Ala.1992). That interpretation of § 6-5-125 is The trial court's finding that the proposed racetrack would be a nuisance per se ......