Wade v. Campbell

Decision Date06 February 1962
Citation19 Cal.Rptr. 173,92 A.L.R.2d 966,200 Cal.App.2d 54
CourtCalifornia Court of Appeals Court of Appeals
Parties, 92 A.L.R.2d 966 William R. WADE et al., Plaintiffs and Respondents, v. Robert CAMPBELL et al., Defendants and Appellants. Civ. 11.

Bradley & Bradley and Nathaniel O. Bradley, Visalia, for appellants.

Locke & Price, John Locke and Edgar D. Price, Visalia, for respondents.

BROWN, Justice.

This action was commenced by various plaintiffs on November 6, 1958, and recovery of damages was sought from January 1, 1956, up to the time of filing suit. The first amended complaint, upon which the request for damages and for a permanent injunction was based, sets forth eight causes of action against the defendants, Robert Campbell and Doris Campbell, husband ahd wife. Seven of these causes of action set forth that a dairy is being operated by defendants under certain described conditions that make it a public nuisance which should be enjoined, and specify damages in varying amounts allegedly sustained by the plaintiffs from its maintenance. The eighth cause of action, brought by all the plaintiffs, alleges that the dairy is being operated in violation of a certain deed of restrictions limiting to residential purposes certain lots owned by defendants and comprising a portion of the premises devoted to the dairy. Defendants' answer denied the material allegations of the complaint and set up affirmative defenses of laches and the bar of the statute of limitations. Upon a nonjury trial and after a view of the premises, the court issued its order absolutely enjoining defendants from using their property as a dairy or maintaining livestock thereon, except for their personal use; awarded damages for past injuries to the Wades and Rectors, $600 per couple; to Elsie B. Ramos, $600; to the Welters, $500; to the Pinheiros, $300; to the Kellmanns, $850; and declared the declaration of restrictions to be null and void and of no effect. Neither damages for property depreciation nor exemplary damages were allowed. Defendants appeal from the judgment.

Since November 7, 1946, defendants have operated a Grade A producer-distributor type dairy on premises in a rural and residential area known as tract 71, two miles south of Visalia, Tulare County, fronting on Mooney Boulevard. All plaintiffs to this action are property owners within this tract which was subdivided in 1946 into 51 lots, and were, during the period involved, residents thereon. Plaintiffs owned various lots which were about 98 feet wide and varied in depth from 199 feet to 282 feet, some lots abutting on defendants' property. In 1946 defendants purchased Lot 47 (which is 98 feet by 370 feet) and Lot 44 (which is 98 feet by 510 feet on one side and 365 feet on the other), and thereafter, acquired additional lots as follows: Lot 48 (98 feet by 370 feet); Lot 49 (98 feet by 370 feet); Lot 43 (98 feet by 365 feet on one side and 282 feet on the other); and the east 110 feet of the east 220 feet (a 110 feet by 196 feet section) of Lots 45 and 46. After the litigation commenced, defendants purchased from one of the original plaintiffs who has since dismissed his suit, the following lots: Lot 50 (98 feet by 370 feet), and Lot 51 (147 feet fronting on Mooney Boulevard and tapering to 14 feet wide on the east rear, by 370 feet in depth). Defendants had acquired a total of seven and one-half lots, consisting of approximately seven acres, within this tract, gradually expanding the dairy operations, increasing the herd to a peak of approximately 220 cows, 60 heifers, 60 calves and 7 bulls; added a drive-in milk depot, a lunch counter on Mooney Boulevard, processing and bottling equipment, buildings and milk routes. The defendants also maintained on the premises pigs for their own use ranging in number from 1 to 6 at different times, horses ranging in number from 1 to 14, donkeys at some times, and 1 to 3 burros at different times.

Thousands of gallons of water per day are used in the dairy operation for the purpose of washing the cows, the barns and other areas where cattle are kept, and washing away straw, sand and some manure. The waste water and effluent drain from the dairy into Packwood Creek, which forms the boundary line of the tract to the south.

The complaints common to, and supported by evidence received in behalf of, all plaintiffs may be summarized as follows: (a) Noxious odors pervaded their properties from manure that was permitted to accumulate and was maintained in large piles, from a silage pit, from the operation of a feed mill, and from a dark, slimy scum which formed on stagnant waste water during periods Packwood Creek was dry; (b) An unusually large fly population with resulting fly specks deposited on and within homes and on laundry hung to dry; (c) An unusually large mosquito population which interfered with the use of outdoor recreational facilities and which invaded homes; and (d) Excessive dust from the use of a feed mill and from the cattle corrals.

Individual plaintiffs testified that large piles of manure maintained on the premises, the open breeding of cattle, and the sight of afterbirth dragged to an open place by dogs offended their eyes; that animal noises in the night disturbed their ears; that stenches from the barnyard and from manure born by surface waters onto their properties assaulted their nostrils; and that excessive fly specks which 'blackened' paint, made frequent repainting of homes and garages necessary.

In December 1955 a severe flood caused substantial damage in the tract and manure was floated to and deposited upon the property and within the homes of some plaintiffs. All plaintiffs testified that throughout the remainder of that winter and the spring of 1956 the dairy odors were strong, offensive and nauseating, and the fly and mosquito populations substantially increased.

Defendants urge that the judgment of the court below was erroneous and ask three questions on appeal: (1) Was a nuisance created and maintained by defendants on their premises and if so, was this a public and continuing nuisance? (2) Did the plaintiffs show that they suffered some special damage which is distinct and different from the damage to the public at large and which entitled them to damages for the maintenance of a public nuisance? (3) Should the court have considered the fact that many of the acts complained of had been abated by the defendants prior to the time of trial?

While the notice of appeal indicates that defendants appeal from the entire judgment, that portion declaring the declaration of restrictions null and void is not presented on their appeal and we may therefore disregard it.

Defendants first ask, 'Was a nuisance created and maintained by defendants on their premises and if so, was this a public and continuing nuisance'? The answer is in the affirmative. Section 3479 of the Civil Code provides, in part: 'Anything which is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, * * * is a nuisance.' Conditions which have been treated by California courts as nuisances include dust arising from the conduct of a chicken raising business (McIntosh v. Brimmer, 68 Cal.App. 770, 230 P. 203); odors, sounds and smoke which are offensive to the senses (Judson v. Los Angeles Suburban Gas Co., 157 Cal. 168, 106 P. 581, 26 L.R.A.,N.S., 183); and the operation of a dairy, the breeding and propagating of dairy cattle and the maintaining of hogs in a pen on defendant's property in front of and just across a public highway from plaintiff's home (Cook v. Hatcher, 121 Cal.App. 398, 9 P.2d 231). The evidence in the case under consideration disclosed dust arising from the conduct of defendants' dairy, odors and sounds which are offensive to the senses, the breeding and propagating of dairy cattle and the maintenance of hogs in a pen on defendants' property in front of and across a public highway from the Wade property. This evidence amply supports a finding that defendants maintained a nuisance.

Section 3480 of the Civil Code provides: 'A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damages inflicted upon individuals may be unequal.' Conditions which amount in law to public nuisances include a cattle stable and hog pen, together with a large manure pile, on the banks of, and which polluted the waters of, a nonnavigable stream (People ex rel. Ricks Water Co. v. Elk River Mill and Lumber Company, 107 Cal. 214, 40 P. 486); noxious gases emitted from an accumulation of whey, sour milk and debris, allowed to stand in tanks at defendant's creamery (Fisher v. Zumwalt, 128 Cal. 493, 61 P. 82); and dust, noise and grit from a cement plant (Markey v. Danville Warehouse and Lumber, Inc., 119 Cal.App.2d 1, 259 P.2d 19). In our case, eleven plaintiffs owned twelve and one-half lots in a fifty-one lot tract, and thus constituted a considerable number of persons in the neighborhood. Thus, the nuisance created by the manner in which defendants operated their dairy was a public nuisance.

A continuing nuisance is one which may be abated at any time (Kafka v. Bozio, 191 Cal. 746, 218 P. 753, 29 A.L.R. 833). Since the manner in which defendants' dairy was operated was capable of being abated at any time, the nuisance was properly classed as a continuing one.

Defendants next contend that plaintiffs have no standing to maintain an action in that they did not show special injury appart from that suffered in common with the public. It is provided by section...

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