State ex rel. Burton v. Vandyne

• Decision Date: 27 January 1945
• Docket Number: 36180.
• Citation: 155 P.2d 458,159 Kan. 378
• Parties: STATE ex rel. BURTON, County Attorney, v. VANDYNE et al.
• Court: Kansas Supreme Court

155 P.2d 458

159 Kan. 378

STATE ex rel. BURTON, County Attorney, v. VANDYNE et al.

No. 36180.

Supreme Court of Kansas

January 27, 1945

Appeal from District Court, Labette County; A. K. Stavely, Judge pro tem.

Action by the State, on the relation of George Francis Burton County Attorney of Labette County, against N. E. Vandyne and Howard Vandyne, personally and as partners under the name of The Parsons Ice Company, and others, to enjoin defendants from operating an ice manufacturing plant. From a judgment for defendants on two causes of action and for plaintiff on a third cause of action, both parties appeal.

Affirmed in part and reversed in part.

Syllabus by the Court.

1. An action to enjoin the operation of an ice plant in a section of the city that has been zoned for residential purposes may be maintained only by the city.

2. An action to enjoin the operation of an ice plant on the ground that the traffic and the noises caused by it constituted it a public nuisance may be maintained by the state only when the ice plant is operated in a manner to cause damage or annoyance to the general public.

3. In an action such as that described in the foregoing paragraph of the syllabus, the record is examined and held that there was no substantial evidence that the acts described constituted a public nuisance.

C. E Pile, of Parsons (George Burton, Co. Atty., of Parsons, on the brief), for appellant.

Chester Stevens, of Independence, and Elmer W. Columbia, of Parsons for appellees.

SMITH Justice.

This was an action by the state on the relation of the county attorney to enjoin the defendants from operating an ice manufacturing plant. The petition was in three causes of action. Judgment was for the defendants on two of the causes and for the plaintiff on one of them. Both parties have appealed.

The first cause of action alleged that the defendants were engaged in the manufacture and sale of artificial ice on lot 12 in block 14 in Stevens & Barrows West Side Addition to the city of Parsons, and that this lot was within the residential area of the city; that Parsons had enacted a zoning ordinance at a time when a filling station was being operated on the lot in question and subsequent to the enactment of the ordinance a frame building was built thereon and the manufacturing of ice was begun therein; that the ordinance No. 3179 placed the lot in question in the commercial district and ordinance No. 3327, enacted October 24, 1939, placed it in the residential district; that on August 18, 1930, this lot was included in the commercial district and was used only for the sale of manufactured ice and for an oil and gas filling station and that subsequently the ice manufacturing business was installed thereon; that defendants had no certificate of occupancy for the lot in question; that the business of manufacturing ice was on the lot in violation of the provisions of the zoning ordinance. The petition further alleged that a large number of citizens had protested to the mayor and commissioners of the city against the construction of an addition to the ice plant building and the building inspector had reported that the building was not unlawful, whereupon an appeal had been taken to the mayor and commissioners and no action had been taken thereon and petitioner had no adequate remedy at law.

The prayer was for an order restraining the defendants from doing any of the unlawful acts charged in the petition; from unlawfully conducting the business of manufacturing ice on the premises; and that the ice manufacturing business be declared a public nuisance and abated, and for costs.

The second cause of action referred to all the allegations of the first and alleged further that in the operation of the ice plant defendants used a large aerator by which water was caused to fall and to make a steady, constant, penetrating and monotonous noise, to the discomfort of citizens living nearby; that defendants operated the plant twenty-four hours a day and installed a powerful flood light which caused a constant and unwavering light; that many persons operated trucks and automobiles there at all hours of the night and constantly honked at each other making loud noises which were heard for long distances; that people called to each other in loud voices, hammered and shouted and in the operation of the plant made noises in dragging cakes of ice about so that the sleep of the residents in the area was constantly disturbed and the sick and weak were distressed thereby and it was necessary for them to sleep in their basements in order to obtain rest and that the method and manner of operating the plant was a common nuisance.

As to this cause of action, the plaintiff prayed that the operation of the ice manufacturing business be declared unlawful and a common nuisance and that it be abated.

In the third cause of action the plaintiff made the allegations of its first cause of action a part and alleged the proximity of certain public buildings of Parsons to the lot in question and that all of the area was densely populated and further alleged that the defendants had appropriated to their exclusive commercial use for traffic purposes all that part of 29th Street within the west curb thereof located between the alley north of its building and Main Street one-half block in length; that for its traffic purposes defendants used the sidewalk and parking area; that the flood light standard hereinbefore mentioned stood in this parking area; that no sidewalk for the use of citizens existed along the east side of Lot 12; that the citizens of Parsons were prevented from the public use of 29th street between Main street and Washington avenue by reason of congested traffic unlawfully thereon because of the operation of this plant; that the use and occupancy of Lot 12 by defendants and their appropriation of the public thoroughfares adjoining for the conduct of their private business constituted a nuisance against the public rights of the citizens of Parsons.

As to this cause of action the prayer was about the same as for the other two causes.

Various ordinances were attached to this petition as exhibits.

The answer of the defendants was a general denial together with a specific allegation that the plaintiff had no capacity to sue; was not the real party in interest; that several causes of action were improperly joined; that there was a confusion of theories in the petition; that the facts stated did not disclose a public or common nuisance; that the defendants and their tenants had been operating a gasoline filling station and retail ice house for more than ten years prior to the commencement of this action; that on March 2, 1938, a plant for the manufacture of ice was constructed upon the premises and had been in operation since that time. The answer then set out various ordinances of the city of Parsons, which are not important here in view of the disposition we have concluded to make of the case. The answer further stated that on October 10, 1940, the defendants had purchased the ice plant in good faith and believing it was in lawful operation upon the premises, and relying upon the ordinances set out; and that in the summer of 1943 defendants commenced the construction of a frozen food locker for the benefit of families of Parsons and that the ice manufacturing business was necessary in the city of Parsons; that the premises were located at a place where there were various other noises from the operation of an interurban line upon which automobiles and freight cars operate and that various automobiles and trucks operated upon the highway in front of the plant; that the value of the property was in excess of $20,000. The answer admitted the passage of ordinance No. 3179, which was the ordinance upon which the first cause of action was based. The reply of the plaintiff was a general denial.

The plaintiffs filed a motion for judgment on the pleadings as to all of the causes of action. This motion was overruled.

The defendants also filed such a motion, which was overruled.

At the conclusion of the evidence of the state the defendants interposed demurrers to the evidence on the ground that it had not proved any cause of action. These demurrers were sustained by the trial court as to the first and third causes of action but overruled as to the second.

The trial court proceeded to hear evidence of the defendant as to the second cause of action and made findings of fact and conclusions of law. The court made the following findings of fact, which are of particular interest to us here:

'11. The operation of said plant creates noise, the volume and intensity of which varies with the circumstances and depends upon several factors, including sensitivity of hearing, atmospheric conditions, remoteness, the volume of other nearby noises, such as those caused by motor vehicle and railway traffic, and also whether the windows and doors of the plant and of residences in the neighborhood are open. Some of the noise from the plant is continuous while the plant is in operation, both by day and by night. One such noise is that made by the falling of the water in the cooling tower and which is similar to to the sound of a hard rain. This noise can be heard for about 100 feet. Another such noise is the humming sound made by the motors, and which under favorable conditions can be heard for about 150 feet; but this noise is not more intense than that made by the average automobile engine. There is also some noise from the operation of the other machinery, among which is a rumbling sound made by the blower and which is audible for as much as 200 feet. All of these sounds are more or less constant and regular and combined create a rhythmical background or

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