Webb v. Town of Rye

Decision Date30 June 1967
Citation108 N.H. 147,230 A.2d 223
PartiesRay C. WEBB and Louise D. Webb v. TOWN OF RYE.
CourtNew Hampshire Supreme Court

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.

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.

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 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 at night too.' Plaintiffs and their neighbors become nauseated, irritable and suffer lack of sleep as a result. The smoke 'is irritating to your throat and nose.' 'It is a nauseating feeling that you get from the odor.' 'On a hat nigh it is unbearable and you can't sleep.' Plaintiffs are limited in the outdoor use of their property. 'We cannot have cookouts or guests outside of the house.' 'We cannot hang clothes outside at any time.' Outdoor repairs are required to an unusual degree because of the oily film and ash produced by the burner. It 'completely coats everything it touches * * * the windows, the automobiles, the side of the house.'

A diesel payloader used in conjuction with the burner operates 'at times all day long and especially early in the morning it is loud because that is when they use that to clear the previous day's refuse from the burner.' It is operated on Saturdays and Sundays and is visible from plaintiffs' back yard. 'The town has erected a heavy bright light by the incinerator that reflects continuously in plaintiffs' room.'

A real estate broker and appraiser examined plaintiffs' property and the surrounding area. 'It is a high type residential area on Washington Road. . the properties in my opinion vary from 20 to 50 odd thousand plus' in value. The last time the witness examined plaintiffs' premises the burner was in operation 'emitting a heavy black smoke toward the Webb property from the south. It had a dump odor, a very strong objectionable odor to it.' In his opinion the effect of this dump area and refuse burner depreciates plaintiffs' property and the other properties in the neighborhood 'at least 25 per cent.'

A 'Comprehensive Town Plan Rye, New Hampshire' (February 1964) prepared with the aid of professional consultants was introduced as an exhibit. 'One of the most vexing problems relating to community services is how to handle refuse disposal. In terms of a long-range planning program for the Town of Rye, the present method of disposal should be assessed as well as considered for relocation of the dump site. The present site, reached from Grove Road, under existing disposal practices cannot reasonably be expected to serve beyond a year or possibly two before its total capacity is reached' (p. 68). 'Landfill per se, would be extremely difficult in Rye because gravel deposits are so limited and much of the vacant area is marshy. There may be an answer, however, which is economically feasible in the use of a refuse burner and then limited landfill' (p. 71). 'Consideration of existing land uses and values are elements of concern in the selection of any new site for dumping operations.' (p. 72). 'Serious consideration for a new site, therefore, focusses upon existing gravel pits or inland areas where some gravel may be available for use in conjunction with a refuse burner' (p. 72). The 'Town Plan' report suggested the consideration of three specified areas in Rye for such use.

On February 5, 1964 the Town of Rye received from the State of New Hampshire a conveyance of a tract of land at Rye Harbor containing about ninety acres on condition 'that it be used only for public and municipal purposes'. At the town meeting held March 10, 1964 the voters adopted the following warrant article: 'To see if the Town will vote to raise and appropriate the sum of Twenty Thousand ($20,000.00) dollars for the purpose of the acquisition of a refuse burner, a suitable site for the same, and a tractor loader, prepare the site, erect equipment and place the burner in operation to replace the present system of open burning of...

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