State ex rel. Thompson v. District Court, Fourth Judicial Dist., 9812

• Citation: 313 P.2d 1034,132 Mont. 53
• Decision Date: 30 July 1957
• Docket Number: No. 9812,9812
• Parties: STATE of Montana, ex rel. Eugene O. THOMPSON, d/b/a Sports Enterprises, Relator, v. DISTRICT COURT, FOURTH JUDICIAL DISTRICT, Missoula County, and the Hon. C. E. Comer, Judge thereof, Respondents.
• Court: United States State Supreme Court of Montana

Page 1034

313 P.2d 1034

132 Mont. 53

STATE of Montana, ex rel. Eugene O. THOMPSON, d/b/a Sports

Enterprises, Relator, v. DISTRICT COURT, FOURTH JUDICIAL DISTRICT, Missoula County, and the Hon. C. E. Comer, Judge thereof,

Respondents.

No. 9812.

Supreme Court of Montana.

Submitted May 21, 1957.

Decided July 8, 1957.

Rehearing Denied July 30, 1957.

D. A. Paddock, Robert R. Skelton, Missoula, Robert R. Skelton, Missoula, argued orally, for relator.

Anthony F. Keast, County Atty., Missoula, Lyman J. Hall, and H. J. Pinsoneault, Deputy Co. Attys., Missoula, Anthony F. Keast, County Atty., and H. J. Pinsoneault, Deputy County Atty., argued orally for respondent.

HARRISON, Chief Justice.

This is an original proceeding.

On April 25, 1957, a number of property owners and residents of the East Missoula community filed complaint in the district court of Missoula County, wherein Eugene O. Thompson, doing business as Sports Enterprises, a fictitious name, was the defendant.

The complaint alleged that the defendant, his agents, servants and employees were in possession and exercising incidents of ownership of a tract of land comprising eight acres, more or less, situated immediately adjacent and contiguous to properties of the plaintiffs located in the East Missoula community; that the defendant intends to use the tract of land for the purpose of constructing and establishing a stock car race track; that the plaintiffs made strong protests to the defendant as soon as they became aware of the contemplated plan of the defendant; that at the time of the filing of the complaint no substantial improvements had been made or placed on the property, and in fact nothing had been done except to survey the tract and remove the topsoil; that the plaintiffs through counsel formally requested the defendant not to proceed with the stock car race track project, but that the defendant has refused the request and will proceed, unless restrained, enjoined and prevented from so doing by order of the court; that in order to reach the proposed race track it is necessary to drive along the highway through the East Missoula community; that if the track is constructed there will be a constant number of stock car drivers with stock cars driving the streets of the East Missoula community, in addition to the procession of enthusiasts endeavoring to reach the race track; that thereby there will be placed in the East Missoula community a situation which will be a constant reminder of speed, unsightly trash strewn over the streets, demolished bodies or disabled stock cars left to junk and a hazard to life and limb of the residents of the community, particularly the children thereof; that the children of the community are accustomed to playing in the streets and the extra traffic will cause extreme worry and concern to the parents of the children; that the proposed race track as project and planned by the defendant will bring an atmosphere of dust, noise, fumes, gases and smoke into the homes of the community and cause the residents both physical and mental distress, disturbance and discomfort; that the impact of these matters upon the residents of the community will cause it to cease to be a happy and attractive place for homes and outdoor recreation and pleasures and the existing values of the property will be seriously depreciated and reduced; that there is no need or necessity for the defendant to place a stock car track in the community, and by doing so against the protests of the residents thereof, it is not fair, just, or equitable for the defendant to proceed therewith; that if the defendant is permitted to proceed with the project the residents of the community will be greatly and irreparably damaged and harmed, and the plaintiffs have no adequate remedy at law unless defendant is restrained from the proposed action.

Plaintiffs prayed that an injunction be issued by the court enjoining and restraining defendant from establishing, maintaining and operating upon his property the proposed stock car race track, and that the court make and issue an order requiring defendant to appear and show cause why injunction should not issue; that pending the hearing on the order to show cause that the court issue a restraining order until the matter could be heard.

Summons in the usual form was issued on the same day, at which time the court issued an order to show cause and restraining order which required the defendant to appear before the court on April 29, 1957, at 9:00 a. m., to show cause why order of the court should not be made enjoining and restraining the defendant, his servants, agents and employees from progressing further with the construction and erection of the proposed stock car race track in the community of East Missoula, and from doing any further work in connection therewith or pursuant to said project. It was further ordered that pending the hearing the defendant be restrained and enjoined from progressing further with the project and from doing any further work in connection therewith or pursuant thereto. No bond was required to be filed by the court in connection with the issuance of the restraining order.

The summons, complaint, order to show cause and restraining order were served on the defendant on April 25, 1957, sometime late in the evening.

On the morning of April 26, 1957, the defendant caused to be filed in said action an affidavit wherein defendant stated that he had purchased the eight acres of land on or about April 15, 1957, and undertook the construction of a sport's arena for several purposes and for the particular purpose of conducting stock car races; that he had undertaken to clear the area for the purpose of construction; that at or about midnight on April 25, 1957, he had been served with the papers hereinbefore referred to; that he had no notice of any kind of the application for the order; that it was necessary for the race track, in order for it to be profitable and useful in the year 1957, to be ready for use on or before May 15, 1957, by reason of the fact that the defendant had engaged a show, acts and other attractions in advance for showing, and that if he lost the revenue from May 15, to Memorial Day week end that several thousand dollars would be lost to him; that he had a contract to make payments upon the land which if not paid would subject him to the loss of his investment; that defendant had earth-moving equipment upon the premises at a cost of $200 per day; that he had no adequate or speedy remedy at law which would remedy the situation in time to save him suffering a great and irreparable loss between now and the date of the hearing; that he had committed no nuisance and intends to commit none; that all he had done so far was to clear topsoil off the ground in preparation for construction; that the operation of the defendant was no more odious or unsightly than lumber mills, wrecking yards, gravel pits and clay pits now being operated in the area; and that there are few, if any, houses so located that they can see the operations now being conducted by the defendant.

Allegations were also made in the affidavit that no service of an original order to show cause and restraining order had been made upon defendant or exhibited to him, and that no original summons was exhibited to him or served upon him.

The concluding paragraph and prayer of the affidavit is as follows:

'Wherefore, defendant prays that this order be set aside by reason of the fact that no service has been properly made on the defendant of the said Order, and he appears specially for this purpose and this purpose alone,

'2. Great and irreparable harm will accrue to him if the order is continued in force till the hearing on this and the other questions may be had at the time set therefor,

'3. That there is no showing in the complaint of the plaintiffs that a law has been violated or that a nuisance has been committed,

'4. That such nuisance as is alleged in the complaint of the plaintiffs is prospective merely and not actual or existing,

'5. And such other and further relief as to the court may seem meet, just and equitable under Section 93-4211, R.C.M.1947.'

The defendant and his counsel and counsel for the plaintiffs appeared in court the morning of April 26, 1957, at which time defendant made a motion to set aside the operation of plaintiffs' restraining order until the order to show cause could be heard on April 29, 1957. The court ordered counsel to return [132 Mont. 58] at 1:00 p. m. on that date, and at that time stipulation was entered into whereby the restraining order would not apply to dirt moving...