Vermillion v. Pioneer Gun Club

• Decision Date: 23 January 1996
• Docket Number: No. WD,WD
• Citation: 918 S.W.2d 827
• Parties: Jackie VERMILLION and Nolan Vermillion, Appellants, v. PIONEER GUN CLUB, Respondent. 50670.
• Court: Missouri Court of Appeals

Page 827

918 S.W.2d 827

Jackie VERMILLION and Nolan Vermillion, Appellants, v. PIONEER GUN CLUB, Respondent.

No. WD 50670.

Missouri Court of Appeals,

Western District.

Jan. 23, 1996.

As Modified Feb. 27, 1996.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Feb. 27, 1996.

Application to Transfer Denied April 23, 1996.

Appeal from the Circuit Court of Johnson County; Owens Lee Hull, Jr., Judge.

Kurt H. King, Liberty, for appellants.

John Mullen, Kansas City, for respondent.

Before ELLIS, P.J., and HANNA and SPINDEN, JJ.

SPINDEN, Judge.

Jackie and Nolan Vermillion sued the Pioneer Gun Club in 1993 after bullets from the nearby gun club began straying onto their property. They claimed that bullets from weapons fired on Pioneer's outdoor ranges hit their house, their trees and other property, constituting a private nuisance, trespass, negligence, and causing emotional distress. The circuit court ruled for the Vermillions on the nuisance and trespass claims and for Pioneer on the negligence and emotional distress claims. We affirm in part, reverse in part, and remand for further proceedings.

The Vermillions bought a 10-acre tract in rural Johnson County in 1984 and moved there in 1986. The same year, Pioneer bought approximately 380 acres next to the Vermillions' land and moved in to establish a firing range complex. Pioneer had operated in the Kansas City area since 1940 and had approximately 600 members.

The neighbors got along fine until 1988 when Pioneer constructed a high-power, silhouette range which required users to fire toward the Vermillions' property. The range ended about 675 feet from Pioneer's last berm before the Vermillions' property, and the Vermillions' house was approximately 1200 feet from Pioneer's property line. Pioneer designed the range after consulting with a National Rifle Association guide but did not completely comply with the guidelines. Pioneer also maintained other firing ranges on the site. Pioneer's former president, Leon Cross, said that he first became aware that bullets were straying onto the Vermillions' property in 1991 when, on April 21, they informed Pioneer that a bullet had ended up in their house's wall. On February 18, 1992, the Vermillions agreed to release all their claims against Pioneer in connection with the April 21, 1991, incident for $500.

Between August 1992 and September 1994, bullets or ricochets continued straying from the gun club onto the Vermillions' property. In March 1993, the Vermillions filed a four-count petition against Pioneer. In August 1993, they filed an amended petition seeking injunctive relief, actual and punitive damages. The petition alleged that the shooting of firearms on the gun club's open ranges resulted in bullets passing over or onto their land, and that this constituted a private nuisance, trespass, negligence and caused emotional distress. ¹

The first trial of the case in January 1994 was interrupted by a declaration of mistrial. The case was retried before a judge in October 1994. On December 29, 1994, the circuit court found that from the time Pioneer began using the silhouette range in 1988, bullets or ricochets strayed onto the Vermillions' property at least 14 times between August 1992 and September 1994. The court found that the bullets, fragments and ricochets were from weapons fired on Pioneer's silhouette range and that the range was a permanent nuisance. The court also found that Pioneer had directly interfered physically with the Vermillions' property and their right of enjoyment. The court enjoined Pioneer and its members from (1) firing any weapons on the silhouette range as it was then configured; (2) firing toward the Vermillions' property on any open firing range; and (3) constructing a high-power, silhouette range anywhere on its property unless it placed compacted, 20-foot berms behind the targets and modified the range to comply with other specifications ordered by the court.

The court awarded $3000 in damages on the nuisance claim and $7000 on the trespass claim ($500 for each of the 14 incidents). It did not award any punitive damages because it did not find "the legal malice necessary to impute nor allow punitive damages to be awarded." The court found for Pioneer on the negligence and emotional distress claims. The Vermillions appeal.

In the first of eight points raised on appeal, the Vermillions contend that the circuit court's conclusion that Pioneer's silhouette range constituted a permanent nuisance--rather than a temporary nuisance--was erroneous. They argue that the nuisance was temporary because it was abatable. We agree.

"An action for private nuisance rests on tort liability and is based upon an unreasonable interference with the use and enjoyment of land." Schwartz v. Mills, 685 S.W.2d 956, 958 (Mo.App.1985). The source of the injury, rather than the injury itself, is generally the determining factor in deciding whether a nuisance is permanent or temporary. It is an issue of law rather than fact. Campbell v. Anderson, 866 S.W.2d 139, 143 (Mo.App.1993). "The distinguishing feature between a permanent and temporary nuisance is the 'abatability' of the nuisance." Racine v. Glendale Shooting Club, Inc., 755 S.W.2d 369, 374 (Mo.App.1988). When a nuisance's abatement is reasonable and practical, it is a temporary nuisance. Campbell, 866 S.W.2d at 143. A temporary nuisance may be abated at any time by a reasonable effort or by an order of the court. Stevinson v. Deffenbaugh Industries, 870 S.W.2d 851, 855 (Mo.App.1993). A permanent nuisance generally results from a permanent construction which is injurious as installed, rather than injurious through its use, Racine, 755 S.W.2d at 374, and where abatement would be impracticable or impossible. Stevinson, 870 S.W.2d at 854.

We are especially guided by Racine, 755 S.W.2d at 369. Considering facts markedly similar to the Vermillions' case, the Racine court concluded that the nuisance was abatable and temporary. It noted that the plaintiffs' action was not an attack on the presence of the gun club itself, but on the level of activity conducted on the premises. Id. at 374.

In the Vermillions' case, bullets did not begin straying onto the Vermillions' property until after Pioneer began using the silhouette range in 1988. The nuisance which resulted from the club's shooting activities was abated by court order in December 1994. This suggests that the nuisance was abatable and temporary.

Pioneer argues, nevertheless, that the nuisance was permanent because the Vermillions' petition did not specifically plead a temporary nuisance or temporary nuisance damages. This does not make a difference. Although it did not use the term "temporary nuisance," the petition pleaded facts and prayed for relief which sufficiently established that its claim was for abatement of a temporary nuisance. It alleged that bullets from the gun club substantially impaired and diminished their use and enjoyment of their property, and it prayed for an injunction to abate the nuisance. It did not complain of the gun club's existence, but of the open range shooting activities. Moreover, the court's order did not restrict all of the club's shooting activities or prohibit the club from using its property for other sports activities. That the petition mentioned that the property had decreased in market value did not transform the Vermillions' cause into an action for a permanent nuisance.

If allegations are doubtful as to whether the pleaded cause of action is for a permanent nuisance or a temporary nuisance, courts should treat the nuisance as temporary. Rebel v. Big Tarkio Drainage District, 602 S.W.2d 787, 794 (Mo.App.1980) (disapproved on other grounds, Frank v. Environmental Sanitation Management, 687 S.W.2d 876 (Mo. banc 1985)). The shooting of firearms on the silhouette range in the direction of the Vermillions' property was an abatable, private nuisance, as evidenced by the injunctive relief granted by the circuit court. The circuit court erred as a matter of law in concluding that the nuisance was permanent.

The Vermillions also contend that the circuit court's award of damages for the nuisance claim was incorrect because it did not include damages for loss of rental value, mental anguish, impairment of health or physical discomfort. The measure of damages caused by a temporary nuisance is the amount the property's rental value decreases during the nuisance's duration. It also includes other incidents of damage such as loss of comfort and health. Fletcher v. City of Independence, 708 S.W.2d 158, 178 (Mo.App.1986). Because of our disposition of the first point, the circuit court will have an opportunity to redetermine its damage award. If its award did not include the items listed above, it shall recalculate its award.

The Vermillions also contend that the circuit court erred in denying their negligence claim. The circuit court's order said that "on Count II [for negligence] the issues are found in favor of [Pioneer] and against [the Vermillions]." They argue that the evidence established that Pioneer breached its duty to them and caused injuries.

The circuit court did not explain in its findings of fact and conclusions of law the reason for ruling against the Vermillions. ² It appears inconsistent with the remainder of its findings and conclusions. The circuit court found that Pioneer's acts "in the operation of that portion of the firearm range designated the high power silhouette range are deliberate and continuous[.]" Pioneer speculates that the circuit court concluded that the Vermillions did not prove that they were damaged. Yet, the circuit court concluded "[t]hat the maintenance and operation of the high power silhouette range by defendant is a nuisance to [the Vermillions] and is causing irreparable damage to their property and property rights." We recognize that the circuit court could have concluded that the damages awarded for the nuisance...