Robinson v. Westman

• Decision Date: 06 June 1947
• Docket Number: No. 34346.,34346.
• Citation: 224 Minn. 105,29 N.W.2d 1
• Parties: ROBINSON et al. v. WESTMAN et al.
• Court: Minnesota Supreme Court

29 N.W.2d 1

224 Minn. 105

ROBINSON et al. v. WESTMAN et al.

No. 34346.

Supreme Court of Minnesota.

June 6, 1947.

Appeal from District Court, Anoka County; Albert H. Enersen, Judge.

Action by Simeon Robinson and another against Margaret Westman and another, doing business as the Hilltop Riding Academy to enjoin operation of the academy as a nuisance. Judgment for plaintiffs, and defendants appeal.

Affirmed as modified.

Mark J. Wooley and Stanley V. Shanedling, both of Minneapolis, for appellants.

Bessesen & Bessesen, of Minneapolis, Arthur E. Giddings, of Anoka, and Thomas Tallakson, of Minneapolis, for respondents.

THOMAS GALLAGHER, Justice.

Action to enjoin maintenance and operation by defendants of the stable, corral, clubhouse, and the business known as Hilltop Riding Academy on the premises at 4500 Central avenue northeast, Fridley township, Anoka county, adjoining the city of Columbia Heights.

The trial court found that defendants' business and the manner of its operation constituted a nuisance to plaintiffs and other nearby residents and ordered judgment perpetually enjoining defendants from operating the same.

From the trial court's order denying defendants' motion for amended findings or a new trial, this appeal is taken. On appeal, defendants admit that the evidence sustains the court's findings as to certain abuses in the operation of the academy, and that by reason thereof the same constituted a nuisance, but contend that since the business is not a nuisance per se the court erred in perpetually abating it rather than abating only the manner in which it was conducted.

Defendant Walter H. Westman commenced operation of the riding academy on the described premises under a lease in 1937. In 1942, he purchased the two-acre tract on which the business was conducted, including the stable and corral thereon. The clubhouse also situated thereon had been constructed by him during the period in which he operated under lease, under an agreement authorizing him to remove the same upon the termination of his lease. It is used for the convenience and entertainment of patrons of the academy and as the residence of defendants' family.

Personal property consisting of horses, saddles, hayrack, sleigh, and other equipment had been previously acquired by defendants. A small pasture adjoining the property, leased by defendants, is used for pasturing and exercising the horses. The business is located in a neighborhood of small homes wherein reside families of moderate circumstances, many of whom maintain small flower and vegetable gardens adjacent thereto. Most of these families have children. The roads in the district are unpaved, but surfaced with dirt and gravel.

In 1942, defendant Walter H. Westman married defendant Margaret Westman, who subsequently assisted him in the operation of the business and remained in charge thereof while her husband served in the armed forces from 1942 until his return in 1945.

The riding academy has been a source of constant trouble and annoyance to home owners in the vicinity. Prior to this action, some 79 of them petitioned the town board of Fridley to abate the same, on the ground that it was a nuisance. No action was taken thereon, and this action, instituted by plaintiffs on their own behalf and on behalf of other residents of the vicinity similarly affected, followed.

At the trial, the evidence, garnered for the most part from the testimony of some 15 of the neighborhood residents, established:

That for many years prior thereto defendants have kept on the described premises at least 20 and as many as 30 riding horses, and a hayrack and sleigh for hire; that patrons using defendants' horses and equipment customarily have followed a route to and from defendants' premises through the nearby streets and roads, past the homes of plaintiffs and other complaining witnesses; that while thus riding over these roads and past such homes these patrons on many occasions have traveled in large groups, often with as many as six riders abreast on the narrow highways, and have raced and galloped their horses thereon and thereby endangered small children and other pedestrians lawfully using the streets; that they have on frequent occasions trespassed upon the yards and gardens of the home owners, trampled their lawns and gardens, pounded on their doors and windows, shouted loud profane, and insulting language to the occupants, and reviled them when they made complaint.

That at other times, when hay-ride or sleigh-ride parties have used defendants' horses and equipment, large groups riding on such vehicles have gone through the streets shouting, jumping off and on such vehicles, running up to the houses, ringing doorbells thereof, scattering straw over the lawns and streets, and otherwise generally creating a nuisance.

That in the maintenance of the corral and stable during this period defendants have permitted the accumulation of filth and manure therein, thereby causing foul and obnoxious odors to blow into and near adjacent homes, including plaintiffs', compelling the occupants to close their windows, such odors permeating clothing and laundry hung out to dry, attracting flies, insects, and vermin, and drawing rats thereto.

That flies and mosquitoes have been drawn to defendants' premises by the accumulations of filth and manure or by the horses thereon, and that these insects have disturbed and irritated defendants' horses, causing them to kick and paw and otherwise create loud noises almost constantly throughout the day and night, particularly during the warm weather.

That in the immediate vicinity of the clubhouse on defendants' premises patrons have frequently gathered at nighttime, making loud noises, shouting, and blowing automobile horns, playing music, and dancing within said clubhouse until late in the night.

That all of the foregoing acts have constituted a nuisance to plaintiffs and other residents in this vicinity, endangering their safety and security and that of their children; interfering with their sleep and rest and with the comfort and enjoyment of their property; injuriously affecting their health; and greatly depreciating the value of their homes.

Defendants contend that, notwithstanding the foregoing facts, there is no reason why in the future the evils complained of may not be eliminated, pointing out that the use of DDT will eradicate the flies and insects; that frequent removal of manure will obliterate the foul odors; that the employment of experienced trail riders accompanying defendants' horses and the patrons thereon will terminate abuses on the trail; that a recently enacted village ordinance prohibiting riding on the streets after 11 p. m. will end abuses occurring during the night; and that if the court had abated or enjoined the abuses complained of or established plaintiffs would have no cause for complaint in the future.

1. Minn.St.1945, and M.S.A. § 561.01, provides:

"Anything which is injurious to health, or indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, is a nuisance. An action may be brought by any person whose property is injuriously affected or whose personal enjoyment is lessened by the nuisance, and by the judgment the nuisance may be enjoined or abated, as well as damages recovered."

Thereunder, a person injuriously affected by a nuisance may bring action in his own name and in behalf of others similarly affected to abate the same. Even if the nuisance to some extent be regarded as a public nuisance, nevertheless, if private rights are affected thereby an action to abate the same may be instituted by the persons whose rights are thus affected. Viebahn v. Board of Com'rs of Crow Wing County, 96 Minn. 276, 104 N.W. 1089, 3 L.R.A.,N.S., 1126; Matthias v. Minneapolis, St. P. & S. S. M. R. Co., 125 Minn. 224, 146 N.W. 353, 51 L.R.A.,N.S., 1017.

2. The foregoing rules are equally applicable whether the nuisance be defined as a nuisance per se or as a nuisance in fact. In either case, the procedure for its abatement and the relief available fall within the same principles, the distinction between the two situations relating only to the matter of evidence or proof. As stated in Pennsylvania Co., etc., v. Sun Co. 290 Pa. 404, 410, 138 A. 909, 910, 55 A.L.R. 873:

"* * * The difference between a business, which, no matter how it is conducted, is a nuisance per se as to certain location and surrounding, and a business which is being so conducted as to become a nuisance, lies in the proof, not in the remedy. In the former, the right to relief is established by averment and proof of the mere act; in the other, proof of the act and its consequences is necessary." (Italics supplied.)

3. It is true that ordinarily a legitimate business enterprise is not a nuisance per se, but it does not follow therefrom that it may not become a nuisance in fact by reason of the manner of its operation, particularly if located in a residential district. If the evidence establishes that such a business in fact is a nuisance, relief may be granted to those injuriously affected thereby. Lynch v. Shiely, 131 Minn. 346, 155 N.W. 390; Brede v. Minnesota Crushed Stone Co., 143 Minn. 374, 173 N.W. 805, 6 A.L.R. 1092. In such cases, the exercise of due care by the owner of the business in its operation does not constitute a defense where, notwithstanding the same, the business as conducted seriously affects the health or property rights of those in its vicinity. Lynch v. Shiely, supra; Bowers v. Mississippi & Rum River Boom Co., 78 Minn. 398, 81 N.W. 208, 79 Am.St.Rep. 395; Batcher v. City of Staples, 120 Minn. 86, 139 N.W. 140; Millett v. Minnesota Crushed Stone Co., 145 Minn. 475, 177 N.W. 641, 179 N.W. 682.

4. It has frequently been held that a legitimate business located in a residential neighborhood and operated so as to pollute or contaminate the...