Tinsley v. Monson & Sons Cattle Co., 109
| Decision Date | 13 May 1970 |
| Docket Number | No. 109,109 |
| Citation | 472 P.2d 546,2 Wn.App. 675 |
| Court | Washington Court of Appeals |
| Parties | Alan TINSLEY, Respondent, v. MONSON & SONS CATTLE CO., Inc., a Washington corporation, Appellant. (40767) II. |
Tonkoff, Holst, Hanson & Dauber, J. P. Tonkoff, Yakima, for appellant.
Felthous, Brachtenbach & Peters, Robert A. Felthous, Selah, for respondent.
Plaintiff instituted this action alleging defendant's operation of a cattle feedlot adjacent to plaintiff's property constitutes a nuisance, seeking abatement thereof and damages allegedly sustained by reason of loss of his comfortable enjoyment of life and property and by reason of loss in reasonable market value of his property. Defendant denied maintenance of a nuisance and by way of affirmative defense alleged establishment of a legitimate business prior to plaintiff's purchase of property adjacent to the feedlot and further alleged that any inconvenience experienced by plaintiff is a reasonably necessary and expectable consequence occasioned by the conduct of defendant's business.
After trial to the court, findings of fact, conclusions of law and judgment in favor of plaintiff were entered on October 18, 1968. The judgment declared defendant's feedlot operation a private nuisance with respect to plaintiff and also a public nuisance specially injurious to plaintiff; ordered specified pens be no longer used 'on the same scale and to the same degree' as before; granted defendant a reasonable time to effect manure removal in an attempt to eliminate 'fly, odor and manure-dust problems'; awarded plaintiff damages in amount of $500 (presumably for loss of comfortable enjoyment of life and property); reserved until a latter date determination of damages by reason of depreciation in market value of plaintiff's property; and retained continuing jurisdiction over the cause until further order of the court. Defendant filed written notice of appeal on November 15, 1968.
Notwithstanding the filing of the notice of appeal, the court conducted a further hearing in the matter on November 18, 1968, and subsequently entered another judgment on February 14, 1969. Again defendant appealed and both appeals, pursuant to stipulation of the parties, have been consolidated by order of the Supreme Court prior to transfer of the cause to this court.
Preliminarily, we should note that any attempted proceedings in the superior court subsequent to filing of the notice of appeal on November 15, 1968, occurred after the trial court lost jurisdiction over the proceedings. Rule on Appeal I--15 (formerly RA 15); Sanwick v. Puget Sound Title Ins. Co.,70 Wash.2d 438, 423 P.2d 624 (1967). Hence, any judgment based upon such proceedings is void and uneforceable. Phillips v. Wenatchee Valley Fruit Exchange, 124 Wash. 425, 214 P. 837 (1923). We consider, therefore, solely the issues presented by defendant's appeal from the court's judgment of October 18, 1968.
Defendant has assigned no error to any of the court's findings of fact. They are, therefore, the established facts of the case. Lewis v. Scott,54 Wash.2d 851, 341 P.2d 488 (1959). Defendant's assignments of error go only to (1) the court's determination that the feedlot operation constituted a nuisance, public or private, and (2) the court's partial restriction on the use of defendant's property. The general issue presented by this appeal, therefore, is simply to determine whether or not the established facts, which must be accepted as verities, support the court's conclusions of law.
It would serve no useful purpose to detail the court's findings of fact. Suffice it to say that since August, 1966, circumstances in a portion of Selah Valley have been somewhat less than idyllic. In 1963 plaintiff purchased a house and lot adjoining property owned by defendant and has resided thereon ever since. In 1966 defendant corporation converted a portion of its acreage--which had previously (even before 1963) been used for grazing and occasionally for feeding from temporary bunkers of concentrated feed--to a series of nine permanent feeding pens for high concentrated feeding operations. One of those pens was approximately 40 feet from plaintiff's property. Despite defendant's operations having...
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State v. Wells
...Wash.2d 510, 219 P.2d 108 (1950); State ex rel. Cross v. Superior Court, 158 Wash. 46, 290 P. 430 (1930). Tinsley v. Monson & Sons Cattle Co., 2 Wash.App. 675, 472 P.2d 546 (1970). Jurisdiction is then vested in the appellate The court of appeals acquires jurisdiction of a cause by the time......
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Botsch v. Leigh Land Co.
...inconvenience to them in the comfortable enjoyment of their home.' See, also, § 28--1016, R.S.Supp., 1974; Tinsley v. Monson & Sons Cattle Co., Inc., 2 Wash.App. 675, 472 P.2d 546; Kuhn v. Wood, 34 Ohio Law Abst. 265, 36 N.E.2d 1006; Yeager & Sullivan, Inc. v. O'Neill (Ind.App.), 324 N.E.2d......
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Bunyak v. Clyde J. Yancey and Sons Dairy, Inc., 82-2098
...Atkinson v. Herington Cattle Co., 200 Kan. 298, 436 P.2d 816 (1968), or by other noxious substances. Tinsley v. Monson & Sons Cattle Co., 2 Wash.App. 675, 472 P.2d 546 (1970). Though the liability imposed may travel under different names, the result, as a practical matter, is an application......
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Botsch v. Leigh Land Co.
...inconvenience to them in the comfortable enjoyment of their home.' See, also, s. 28-1016, R.S.Supp., 1974; Tinsley v. Monson & Sons Cattle Co., Inc., 2 Wash.App. 675, 472 P.2d 546; Kuhn v. Wood, 34 Ohio L.Abst. 265, 36 N.E.2d 1006; Yeager & Sullivan, Inc. v. O'Neill (Ind.App.), 324 N.E.2d '......
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§ 19.3 - Public Nuisance
..."race meet" and therefore if contrary to provisions of the Horse Racing Act are a public nuisance). Tinsley v. Monson & Sons Cattle Co., 2 Wn. App. 675, 678, 472 P.2d 546, review denied, 78 Wn.2d 933 (1970) (finding defendant's feedlot operation, conducted in customary manner, constituted a......
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§ 19.2 - Private Nuisance
...346, 351, 254 P.2d 1035 (1953) (drive-in movie theater traffic and noise created nuisance); see also Tinsley v. Monson & Sons Cattle Co., 2 Wn. App. 675, 678, 472 P.2d 546, review denied, 78 Wn.2d 933 (1970) (feedlot operation constituted nuisance). A building or structure cannot be complai......
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Table of Cases
...119 P.3d 325 (2005): 7.3(4), 15.11(3), 17.3(1) Tilzie v. Haye, 8 Wash. 187, 35 P. 583 (1894): 3.3(7) Tinsley v. Monson & Sons Cattle Co., 2 Wn. App. 675, 472 P.2d 546, review denied, 78Wn.2d 933 (1970): 19.2(2)(e), 19.2(6), 19.2(12(e), 19.3(5)(d), 19.5(2) To-Ro Trade Shows v. Collins, 144 W......
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§ 19.5 - Remedies for Nuisance and Trespass
...State ex rel. Tollefson, 25 Wn.2d 476; Payne v. Johnson, 20 Wn.2d 24, 145 P.2d 552 (1944); Chambers, 11 Wn. App. 357; see also Tinsley, 2 Wn. App. 675. Hoover v. Warner, 189 Wn. App. 509, 528, 358 P.3d 1174 (2015) (injunction impermissibly broad where defendants precluded from engaging in a......