Webb v. Town of Rye

• Court: Supreme Court of New Hampshire
• Writing for the Court: LAMPRON
• Citation: 108 N.H. 147,230 A.2d 223
• Parties: Ray C. WEBB and Louise D. Webb v. TOWN OF RYE.
• Decision Date: 30 June 1967

Page 223

230 A.2d 223 108 N.H. 147 Ray C. WEBB and Louise D. Webb
v.
TOWN OF RYE. Supreme Court of New Hampshire. Argued Jan. 4, 1967.
Decided May 23, 1967.
Rehearing Denied June 30, 1967.

Calderwood, Silverman & Ouellette, Dover (Raymond R. Ouellette, Dover, orally), for plaintiffs.

Boynton, waldron & Dill, Portsmouth (Richard E. Dill, Portsmouth, orally), for defendant.

LAMPRON, Justice.

The town acquired, in 1938, a three acre tract of land near Washington and Grove Roads in West Rye which it used continuously as an open dump for the disposal of refuse and garbage until August 1964 when a cone or tepee incinerator was installed thereon and used thereafter for that purpose. This parcel is now zoned single residence under the town ordinance (adopted in 1953 and revised November 1959) but has continued to be used as a dump because of its prior non-conforming use. In April, 1964 the town bought an adjoining two acres, also zoned single residence, which it new uses in conjunction with the incinerator.

[108 N.H. 149] In September 1961, the plaintiffs bought their lot of land zoned single residence but situated near to and in sight of the town's three acre tract which was then in active use as an open dump. The following August, plaintiffs applied for a permit to build a dwelling on their lot at an estimated cost of $24,000. The Trial Court properly found that they built their house after having been assured by certain town officials that the dump would not remain at that location for more than one or two years in the future.

The Trial Court found that 'the use of the Wilco refuse burner by the Town of Rye at the old dump site has improved the conditions in the area in the following respects': 'It has done away with the congregating of sea gulls * * * reduced or eliminated rats * * * reduced flies * * * greatly reduced the fire hazard'. However, the Trial Court made the following findings: 'The operation of this refuse burner has been and now is a nuisance which subjects the plaintiffs to great and troublesome annoyance caused by smoke and objectionable odors from burning garbage and refuse. The Court also finds that this malodorous nuisance has caused a diminution in the market-value of the plaintiffs' property and that they have suffered irreparable harm.' The Court in its decree dated January 16, 1966, ordered 'that the Town cease its operation of this refuse burner after June 1, 1966.' The town has continued to operate the burner during the period of this appeal.

Page 226

The defendant town maintains that the Trial Court erred in granting an injunction against the further use of its tepee refuse burner at this site based upon the Court's findings that the town's operation of the burner 'has caused a diminution in the market-value of the plaintiffs' property' and that 'the economic loss to the plaintiffs is disproportionate to that of the Town in requiring the latter to stop its present refuse burning method.' Defendant further maintains that in so doing the Trial Court erroneously applied 'a doctrine of absolute nuisance' instead of 'the longstanding doctrine of balancing the necessity and urgency of the public use against the private wrong asserted.'

Laws 1955, 275:2 (now RSA 147:23) has made it mandatory for each town, unless exempted (RSA 147:23-a), which Rye is not, to 'provide and maintain public dumping facilities for the depositing of garbage and refuse.' This statutory duty imposed [108 N.H. 150] on the defendant is not, however, a sanction to create and maintain a nuisance. O'Brien v. Town of Derry, 73 N.H. 198, 204, 60 A. 843, RSA 147:26. See Annot. 40 A.L.R.2d 1177, 1182. Because of their necessity, indispensability, and contribution to the public welfare and health of the public in general, public dumps do not constitute a nuisance per se (Myers v. City of Hagerstown, 214 Md. 312, 315, 135 A.2d 147), but they may become a nuisance in fact as a result of their location, the manner in which they are operated, or because of other circumstances. Shea v. City of Portsmouth, 98 N.H. 22, 27, 94 A.2d 902: City of Chicago v. Fritz, 36 Ill.App.2d 457, 467, 184 N.E.2d 713; In re Petition of St. George, 125 Vt. 408, 412, 217 A.2d 45; Annot. 52 A.L.R.2d 1134, 1136.

It follows, therefore, that even though the defendant was exercising a public right in performance of a public duty imposed upon it, if its use of its property was unreasonable as against adjoining owners the plaintiff would be entitled to relief. O'Brien v. Town of Derry, supra; Proulx v. Keene, 102 N.H. 427, 431, 158 A.2d 455; Annot. 52 A.L.R.2d 1134, 1140. In deciding the reasonableness of the town's use, the Trial Court was to take into consideration all the circumstances including, among others, the need and importance of the use exercised by the defendant togethert with the extent of the inconvenience, damage, or injury to the plaintiffs in the use and enjoyment of their property. Hayes v. Waldron, 44 N.H. 580, 583; Ladd v. Granite State Brick Co., 68 N.H. 185, 187, 37 A. 1041; True v. McAlpine, 81 N.H. 314, 316, 125 A. 680. Whether under all the relevant circumstances the use made by the town constituted a nuisance was a question of fact to be determined by the Trial Court whose conclusions if warranted by the evidence will be sustained by this court. True v. McAlpine, supra.

The evidence upon which the Trial Court's findings were based included the following: The burner used by the town to dispose of refuse and garbage is operated seven days per week. Odor, smoke, and gases thereform are being blown continuously toward the plaintiff's property, about 650 feet away, and that of the other neighboring residents by the south winds which prevail about ninety per cent of the time in the summer. The 'smoke from the burner settles to the ground and the stench is practically unbearable.' 'The smoke and stench comes into the house so heavily that we cannot open the windows, that means...