Strong v. Winn-Dixie Stores, Inc.

• Decision Date: 03 May 1962
• Docket Number: No. 17908,WINN-DIXIE,17908
• Citation: Strong v. Winn-Dixie Stores, Inc., 240 S.C. 244, 125 S.E.2d 628 (S.C. 1962)
• Parties: Mrs. Cora Mae F. STRONG, E. E. Strong, Jr., John A. Marion and Mrs. Rebecca S. Marion, Plaintiffs-Respondents, v.STORES, INC., and Mrs. Beatrice S. Howard, Defendants-Appellants.
• Court: South Carolina Supreme Court

Page 628

125 S.E.2d 628

240 S.C. 244

Mrs. Cora Mae F. STRONG, E. E. Strong, Jr., John A. Marion and Mrs. Rebecca S. Marion, Plaintiffs-Respondents, v. WINN-DIXIE STORES, INC., and Mrs. Beatrice S. Howard Defendants-Appellants.

No. 17908.

Supreme Court of South Carolina.

May 3, 1962.

James L. Moss, Jr., York, Robinson, McFadden & Moore, columbia, for appellants.

Andrew B. Marion, W. Francis Marion, Greenville, John A. Marion, York, for respondents.

LEWIS, Justice.

The sole question for determination in this appeal is whether or not the proposed construction and operation of a retail grocery store, referred to as a supermarket, on the property of the defendant Beatrice Howard in the Town of York, South Carolina, will constitute a nuisance.

The defendant Howard Proposes to erect on her property a large retail grocery store and lease the same for operation as such by the defendant Winn-Dixie Stores, Inc. The plaintiffs John A. and Robecca S. Marion, husband and wife, own and reside on property adjacent to that of the defendant Howard, and the plaintiffs Cora Mae F. Strong and E. E. Strong, Jr. own and reside on property across the street from that of the defendant. This action was instituted by the plaintiffs to obtain a permanent injunction against the proposed construction and operation of the grocery store by the defendants upon the ground that the same would constitute a nuisance. The Special Referee, to whom the issues were referred for determination, and the Circuit Judge, who heard the matter on exceptions to the report of the referee, have found that the proposed operation of the grocery store would constitute a nuisance, and the lower Court permanently enjoined the defendants from constructing, erecting, leasing or causing to be operated a supermarket or other similar commercial venture upon the property of the defendant Howard. The defendants have appealed from such rulings.

In brief, the plaintiffs allege that the defendant, Beatrice S. Howard, is the owner of a lot on North Congress Street, in the Town of York, which lot is directly across the Street from the residence of the plaintiffs, Mrs. Cora Mae F. Strong and E. E. Strong, Jr., and adjoining the residence lot of the plaintiffs, John A. Marion and Rebecca S. Marion; that the defendants propose to remove from the Howard property the dwelling houses thereon and to construct upon said property a supermarket building approximately twelve thousand (12,000) square feet in area, with surrounding paved parking area of approximately forty thousand (40,000) square feet; that the defendant, Winn-Dixie Stores, Inc., intends to operate a supermarket within said building and anticipates an annual gross revenue from the business of approximately one million ($1,000,000) dollars, which will, of necessity, create greatly increased motor traffic, hazards, fumes, dust, noise, confusion, trash and general unsanitary conditions; that the store will be serviced by numerous motor trucks during, as well as, after normal business hours; that the construction and operation of this supermarket will deprive the plaintiffs of the quiet enjoyment of their homes, which are situated in a residential area, unique by reason of the age and type of houses located therein and which is widely known and recognized for its historical value and its beauty; that the operation of the supermarket would be injurious to the health of the plaintiffs and members of their respective households; that if the construction of this store is commenced their property will decrease in value and irreparable injury to the plaintiffs will result; and that an injunction should be issued to prevent the construction and operation of the proposed supermarket.

The answer of the defendants admits that a supermarket of approximately the size and nature, with paved parking area, as described in the complaint, is to be constructed by the defendant Howard under a lease agreement with the defendant, Winn-Dixie Stores, Inc., which will operate the same, and that the construction will replace the dwelling houses now on the Howard property. It is further alleged that the area in which plaintiffs live is not predominately residential and that there are no building restrictions or zoning ordinance which would prohibit the use of defendant's property for commercial purposes. The defendants deny that the construction and operation of the supermarket will in any wise interfere with the enjoyment by the plaintiffs of their respective homes or constitute a nuisance.

There is very little dispute in the basic facts in this case. The area involved is located on North Congress Street in the block immediately adjacent to the main business section of the Town of York. North Congress Street is one block in length and runs north and south. On the south is continues into Main Street at which point it intersects East Madison Street which runs east and west. At the north end it forks into Lincoln Road and King's Mountain Street where it intersects Blackburn Street which runs east and west. North Congress Street lies, therefore, between East Madison and Blackburn Streets. It is a part of the state highway system, being U. S. Highway No. 321 and S. C. Highway No. 49. According to an official traffic count, an average of 4700 vehicles travel this street every 24 hours.

The block in which the property in question is located is bounded on the south by East Madison Street, on the east by the C. & N. W. Railroad, on the north by Blackburn Street and on the west by North Congress Street. Across the railroad is located both residential and commercial enterprises. It is undisputed that the property fronting on East Madison Street is devoted entirely to commercial purposes and that there is a small grocery store located on Blackburn Street.

Proceeding north from East Madison Street and the main business section of the Town of York along North Congress Street, the first property on the east side is a lot fronting 40 feet on said street and running back along East Madison Street a distance of 141.5 feet on which is located a business building. This corner building is now used as a flower shop, but at one time was used as a gasoline service station and thereafter as a bus station. Immediately to the rear of the flower shop and fronting on East Madison Street are store buildings in which are located a shoe shop and a dry cleaning and laundry business. The next property is that of the defendant on which it is proposed to erect and operate a supermarket. This lot forms an 'L' around the above corner lot and fronts on North Congress Street a distance of 263.5 feet and on East Madison Street a distance of 55 feet, running back from North Congress Street a distance of 309.5 feet along the property line of the plaintiffs, John A. and Rebecca S. Marion, who are the adjoining property owners to the north. There is located on the Howard lot two residences which will be removed in the construction of the supermarket.

The Marion property fronts on North Congress Street a distance of 100 feet and has considerable more depth than the adjacent property of the defendant. The back portion of the Marion lot is bounded on the south by business property which fronts on East Madison Street. One of these buildings houses a manufacturing enterprise and is within a few inches of the Marion line, and another now houses a furniture store. The property of the defendants runs back from North Congress Street to this manufacturing establishment. The Marion residence is situated on the front part of their lot and the front of the house is approximately 30 feet from the edge of North Congress Street.

To the north of the Marion property is a large lot owned by the Town of York, upon which is located a residence now used to house a public library. There is located on the back of this lot a public swimming pool and a concession stand used in connection therewith.

Theproperty of the plaintiffs Marion is, therefore, bounded on the north and east by the property now used as a public library and a public swimming pool, on the south by the furniture store property, the manufacturing plant, and the property of the defendant, and on the west by North Congress Street, the property of the defendant separating it from the above mentioned flower shop, shoe shop, and the dry cleaning and laundry establishments.

Immediately across the street and in front of the Marion property is located a large residence in which the owners reside and operate as a hotel for rooms only, with a large neon sign in the yard, lighted at night, advertising it as such.

The plaintiffs Cora Mae F. Strong and E. E. Strong, Jr. own the property adjacent to the above mentioned hotel property and reside in the residence located thereon. As heretofore stated, they reside immediately across the street from the property of the defendant Howard. Immediately to the south of the Strong property, and separating it from Madison Street, is a lot on which is located a residence which is now used as a rooming and apartment house, the owner occupying one room therein.

Without further detailed analysis, the record shows that all of the property fronting on North Congress Street is used for residential purposes, either owner occupied or rented as rooms and apartments, except the residence used as a hotel and the above mentioned building used as a flower shop.

The record shows that the defendants intend to construct upon the property of the defendant Howard a building in which the defendant Winn-Dixie Stores, Inc., will operate a large retail grocery business. The proposed building is to be 90 feet facing North Congress Street, with a depth along the Arion property line of 144 feet. The front of the building would be 125.5 feet back from the sidewalk on North Congress Street. The wall of the building along the Marion line would be solid, with no openings. There would be a space of 40 feet between the east...