Racine v. Glendale Shooting Club, Inc.

• Court: Missouri Court of Appeals
• Writing for the Court: SMITH; KAROHL, P.J., and KELLY
• Citation: Racine v. Glendale Shooting Club, Inc., 755 S.W.2d 369 (Mo. App. 1988)
• Decision Date: 14 June 1988
• Docket Number: No. 52799,52799
• Parties: Raymond C. RACINE, et al., Plaintiffs-Appellants-Cross-Respondents, v. GLENDALE SHOOTING CLUB, INC., Defendant-Respondent-Cross-Appellant.

Page 369

755 S.W.2d 369

Raymond C. RACINE, et al., Plaintiffs-Appellants-Cross-Respondents, v. GLENDALE SHOOTING CLUB, INC., Defendant-Respondent-Cross-Appellant.

No. 52799.

Missouri Court of Appeals,

Eastern District,

Division Three.

June 14, 1988.

Motion for Rehearing and/or Transfer to Supreme Court Denied

July 20, 1988.

Application to Transfer Denied Sept. 13, 1988.

David L. Baylard, Union, for plaintiffs-appellants-cross-respondents.

Gael Davis Wood, Washington, Kenneth A. Slavens, St. Louis, for defendant-respondent-cross-appellant.

Charles M. Shaw, St. Louis, Bradley S. Dede, Clayton, amicus curiae for Nat. Rifle Assn.

SMITH, Judge.

Both parties appeal in this court-tried case arising from claims of nuisance and trespass.

The parties own adjoining land in a rural section of Franklin County. Plaintiffs' land encompasses 78 acres, including their home and outbuildings, and lies east of defendant's land. Plaintiffs originally acquired their land in 1967. Defendant's land is larger in size (approximately 107 acres) and on its western boundary adjoins the Meramec River. Defendant is a social club with 200 members. It acquired the property in 1976 for use as a gun club. At the time of acquisition plaintiffs did not object to the use of the land as a gun club and believed the new ownership would put an end to the constant use of the property by large numbers of "hippies" going to the river. Plaintiff Ray Racine joined the club in 1976, used it on a few occasions and did some work to help the club set up. He retained his membership until 1983.

In August, 1983, plaintiffs filed their four count petition against defendant seeking injunctive relief, actual damages and punitive damages. Count I alleged that since "approximately June 1982" defendant had utilized the land "for target practice, local, regional and national shooting matches conducted with automatic weapons, handguns, shotguns and high powered rifles." They then alleged that the noise from the defendant's property "on a daily basis at all hours of the day and night" could be "plainly and loudly heard at plaintiff's residence, even when the doors and windows to said residence are fully closed." On this count for nuisance, plaintiffs sought an injunction permanently enjoining defendant from conducting target practice and shooting matches on its property and for actual and punitive damages. Count II sought actual and punitive damages for ricochets from defendant's property which entered or crossed over plaintiffs' property. Count III for extreme and outrageous conduct, and Count IV for emotional distress, were dismissed by the trial court in its final judgment. No issue about those counts has been raised or is before us.

Following trial the court entered its original judgment on November 19, 1986. The court denied defendant's motion to dismiss on the basis of laches and the statute of limitations; found a "technical trespass" from the "stray bullets or ricochets" but no evidence of any measurable damages and awarded $10 nominal damages; found "an abatable continuing temporary nuisance" for a period of at least five years preceding the filing of the petition through the date of trial. On the nuisance claim the court awarded damages of $200 per month from August 1978 through October 1985, totaling $17,000. It further permanently enjoined defendant:

"from using its property in such a manner as described by the evidence to encourage or permit the frequent discharge of large caliber, high powered firearms. Continuous firing and the conducting of shooting matches or meets is prohibited as is any target shooting before nine o'clock of the morning and after dark or six o'clock of the evening. Occasionally [sic] shooting is not prohibited."

On November 26, plaintiffs filed their "motion for new trial on the issue of damages and motion for clarification of award of monetary damages and award of injunctive relief." On December 2, defendant filed its "proposed specific orders to be adopted and incorporated into the court's injunction order." Both of these documents sought clarification of the original judgment and offered proposed language to be included therein. On February 2, 1987, the court entered its order modifying the November 19 judgment and a new judgment incorporating those modifications. The damages for loss of use of the plaintiff's property was increased to $17,200 as a mathematical correction. The plaintiffs were also awarded $6,000 for "their physical discomfort caused by the nuisance for over seven years." The injunctive provisions were modified to make them more definite. The discharge of large caliber, high-powered firearms and continuous firing was prohibited except as specified in the judgment. Any firing before 9:00 a.m. or after the earlier of after dark or 6:00 p.m. was prohibited. Defendant was permitted to have no more than ten shooting matches per year with no more than two of those high-power rifle matches and with a limit of twenty persons permitted to shoot at one time. No more than two matches per month were permitted utilizing no more than one Sunday per month. In pistol matches no more than eight persons could be shooting at one time, and the eight person limit also applied to all other shooting on the ranges other than during rifle matches. Shooting of weapons of more than .22 caliber was allowed only during rifle matches or between 9 a.m. and 6:00 p.m. on Tuesdays, Thursdays, and Saturdays. No restriction was imposed on shooting .22 caliber rimfire weapons except the time of day restrictions. At shooting matches a trained range safety officer was required to be in supervision. The modifications to the November 19 judgment included suggestions contained in the post-trial documents from each of the parties. As previously stated, both parties appealed.

In addressing the issues raised in the two appeals, it is important to note plaintiffs' position set forth in both their petition and their proof at trial. Essentially they did not claim the operation of the gun club became unreasonable as to them until June of 1982. In its earliest year the gun club had one firing range; by trial time there were five with more intended to be built. In 1976 there were only two organized shooting events; by 1985 there were fifty. The number of participants at matches as well as the number of rounds fired at matches and the number of high-power matches had all dramatically increased. The noise coming from the club in the period from 1982 on was loud and constant, frequently commencing before 8:00 a.m. and continuing until dark. When matches were going on the firing was described as being like a "war." There was a great deal of testimony to support a conclusion that the constancy and volume of the shooting from 1982 on had assumed a character and excessiveness sufficient to move it from the category of bearable irritant to nuisance.

The general rule is that a property owner has the right to exclusive possession and control of his property and the right to devote it to any type of lawful use which satisfies his interests. City of Fredricktown v. Osborn, 429 S.W.2d 17 (Mo.App.1968) [2-7]. The right, however, is not absolute and one may not make such an unreasonable use of his property that it substantially impairs the right of another to peacefully enjoy his property. Id. Whether a particular use is an unreasonable invasion of another's use and enjoyment of his property so as to constitute a nuisance must be determined from the facts in each case, such as locality, character of neighborhood, nature of use, extent and frequency of injury, and the effect upon enjoyment of life, health, and property of those affected. Id., Clinic & Hospital v. McConnell, 236 S.W.2d 384 (Mo.App.1951) [8-11]. Noise is not a nuisance per se but may be of such a character or so excessive as to become one, even though it arises from operation of a lawful business. Clinic v. McConnell, supra, ; City of Fredricktown v. Osborn, supra, ; Lee v. Rolla Speedway, Inc., 668 S.W.2d 200 (Mo.App.1984) .

Plaintiffs' suit was brought to abate a private nuisance as to them. Their pleading and testimony related to the use of the club property after June of 1982. Until that point the use of the club was not, as to them, a nuisance. By their pleading and testimony they have, for purposes of this suit, acknowledged that until that time the defendant's use of the premises did not substantially impair their right to peacefully enjoy their property. That acknowledgement effectively disposes of several issues...