Turner v. City of Spokane
| Decision Date | 06 September 1951 |
| Docket Number | No. 31637,31637 |
| Court | Washington Supreme Court |
| Parties | TURNER et al. v. CITY OF SPOKANE et al. |
Geo. W. Young, Jack R. Dean, Spokane, for appellants.
G. M. Ferris, Corp. Counsel, B. A. Farley and Paul F. Schiffner, Spokane, for respondent City of Spokane.
Witherspoon, Witherspoon & Kelley, Spokane, for respondent Clifton & Applegate.
This is an appeal from a judgment dismissing, with prejudice, an action for injunctive relief.
The plaintiffs are residents and owners of property known as 'Five Mile Prairie', located on a plateau near the City of Spokane. They brought this action on behalf of themselves and others similarly situated to restrain the defendants from the operation of a rock quarry, the operation of a rock crushing plant, or the use of explosives on property acquired by the city for that purpose. Plaintiffs alleged that they raise poultry, farm animals and livestock, and that it will be impossible to breed or raise such poultry or livestock because of the noise, dust and confusion resulting from the quarry operations; that the blasting will change the water courses and their wells will become polluted or dry up; that the blasting and operation of the rock crushing plant will endanger the comfort, health, repose and safety of the plaintiffs; and that the market value of their property will be radically reduced, thus damaging their property without due process of law.
The city answered, denying the allegations of damage, and alleged affirmatively that the property purchased by it for $10,000, after an exhaustive search, was the only suitable site available for its purpose; that, at the time of its acquisition, the property was listed as unclassified, and that, on May 11, 1948, the city applied for and was granted a permit by the county planning commission to operate the rock crushing plant. This was denied by plaintiffs.
The property owned by plaintiffs is used for various purposes. Some of the plaintiffs have lots for sale; one raises rabbits; another poultry; and another horses; another operates greenhouses. Several nice homes have been built by plaintiffs, ranging in value from $5,000 to $25,000. Most of the plaintiffs have children and testified that they were fearful that the blasting and operation of the crusher would be dangerous to the children. They all have wells and their testimony was general that the blasting would injure their wells and either destroy or contaminate their water supply. There was testimony that the dust from the operations would interfere with their health or ruin their shrubbery. They testified that the dust, noise and shock from the blasting would interfere with their repose and well-being, and that the operations would reduce the value of their property materially.
The site of the crushing plant is 125 feet below the pleateau. The city's testimony was that the dust from the operations is heavy and will not rise more than fifty feet above the crusher, and that the prevailing winds will carry the dust in the opposite direction from the homes of the plaintiffs. The property was acquired for the purpose of crushing 100,000 cubic yards of basalt rock to be used by the City of Spokane in its street paving program. The city's testimony was to the effect that basalt rock is much more efficient and economical for asphalt paving and that a great saving has been made with regard to repairs to the paving because of its use.
The contracting firm intends to use a sequence type of blasting. For example, four rows of holes will be drilled and loaded with dynamite. The row closest to the face of the cliff will be shot first, the second row next, and so on. Each shot would be less than a second apart. It was testified that this method of blasting tends to put the pressure from blasting outward, rather than back into the cliff, thus lessening the chance of damage to property located to the rear of the blasting. The wells are from 1,400 feet to 4,000 feet distant from the rock crusher site. The city's witnesses testified that the operations would have no effect on the value of plaintiffs' property.
On sharply disputed evidence the trial court found that the danger of dust, noise and confusion; the danger to the wells and the loss or pollution of water; and the danger and annoyance to plaintiffs' comfort, health, repose and safety due to the blasting and operation of the rock crushing plant were not of sufficient imminence to warrant the granting of injunctive relief at the time of the hearing. We have throughly and carefully examined the record and from such examination are not able to say that the evidence preponderates against such finding. While it is true that a court of equity may enjoin a threatened or anticipated nuisance, public or private, where it clearly appears that a nuisance will...
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