Widmer v. Fretti

• Citation: 95 Ohio App. 7,116 N.E.2d 728
• Parties: , 52 O.O. 343 WIDMER et al. v. FRETTI et al.
• Decision Date: 28 January 1952
• Court: United States Court of Appeals (Ohio)

Page 7

95 Ohio App. 7

116 N.E.2d 728, 52 O.O. 343

WIDMER et al. v. FRETTI et al.

Court of Appeals of Ohio, Lucas County.

Jan. 28, 1952.

Syllabus by the Court.

1. The operation of a gambling resort constitutes an absolute public nuisance and imposes upon the operator thereof strict and absolute liability for resulting harm.

2. Although as a general rule a criminal act will not be enjoined, nevertheless, an injunction will issue to inhibit a criminal act when such act invades civil or property rights and no other adequate remedy is available.

3. Private persons may not resort to equity to prevent criminal acts unless they are threatened with irreparable injury to their property, separate and distinct from that suffered by the public generally.

4. The mere fact that others in a community, who may have been especilly injured, have not elected to seek to abate a public nuisance does not defeat the right of a plaintiff who is similarly specifically injured to obtain relief.

5. A plaintiff seeking to enjoin an absolute public nuisance per se must show that he has suffered or is threatened with irreparable injury distinct from that suffered by the public at large, but his right to relief is not necessary to be determined under principles applying to the abatement of a public nuisance per accidens, and if the evidence tends to show irreparable injury to such plaintiff, separate and distinct from that suffered by the public, the injunction should issue.

6. The personal inconvenience, annoyance and discomfort to the occupant of real estate caused by the maintenance of a nuisance in the immediate vicinity is a separate and distinct element of damage from that of the depreciation in the value of the real estate itself.

7. No right to compensable damages accrues to an owner whose property abuts on a highway by reason of increased volume of traffic thereon.

8. Alleged damage to comfort and enjoyment of one's home property by the presence of trespassers thereon is not recoverable against persons having no direction or control over such trespassers.

9. Damages are not recoverable by a telephone subscriber against another person for annoyance caused by telephone calls for such person in the absence of proof that such person instigated such calls.

10. 'Irreparable' injury from a nuisance which a court of equity will enjoin includes that degree of wrongs of a repeated and continuing kind which produce hurt, inconvenience or damage which can be estimated only by conjecture, and not by any accurate standard of measurement, and an injunction may issue in a case where the nature of the damages is not susceptible of proper assessment by the triers of the facts.

11. The perfecting of an appeal on questions of law and fact from a final order dismissing a petition for injunction and incident thereto dissolving a temporary injunction, does not reinstate the temporary injunction therein dissolved, and a motion in the Court of Appeals for an order to show why the defendants should not be punished for contempt in disobeying the order of the Common Pleas Court will be overruled without prejudice to the right to raise such question in the Common Pleas Court for disobedience of such temporary order during the period when it was in force and effect.

Ohlinger, Koles, Wolf & Flues, Toledo, for appellants.

Dan H. McCullough, Harry R. Illman, Farber, Cochrane, Green & Schrader and Hayward & O'Connor, Toledo, for appellees.

FESS, Presiding Judge.

This is an appeal on questions of law and fact from a judgment entered on behalf of the defendants. Pursuant to a stipulation of the parties, the cause comes on for hearing and determination by this court on the pleadings, the transcript of the record and testimony and exhibits offered on the trial of the cause in the Common Pleas Court, subject to the objections thereto appearing in such transcript.

Plaintiffs, George L. and Marie Widmer, husband and wife, bring their action against Joe Fretti and 15 other defendants to enjoin the maintenance and operation of a gambling resort known as the Benore Road Club and located on Benore road in Washington township, Lucas county, Ohio; and, as an incident to equitable relief, seek $40,000 damages for deprivation of property rights and of the quiet, peaceful and comfortable enjoyment of their home on Benore road, and for attorney fees. Upon the filing of the petition, the Common Pleas Court granted a temporary injunction. Upon final hearing, the petition was dismissed, the injunction bond released, and the temporary injunction vacated and dissolved.

Plaintiffs own a 144-acre farm fronting on the north side of Benore road, situated partly in Ohio and partly in Michigan. The property is intersected by the tracks of the New York Central Railroad, which extend for a half mile or so through the farm, the major portion of the farm being west of the railroad. It has a total frontage on Benore road of 1,200 feet. The Widmer home sets back from Benore road a distance of 469 feet, and is 491 feet west of the railroad. The house, comprising 10 rooms, was built in 1820, and has since been completely modernized.

Although there are a number of modest small homes in the vicinity of the Widmer property, the surrounding area is nonresidential and is not conducive to residential development. Under the Washington township zoning ordinance, the property north of Benore road is zoned for agricultural uses and that to the south is zoned for industrial uses. A manufacturing establishment occupies the property formerly operated as the Club Devon. West of the Widmer home is a small township cemetery. Benore road dead-ends at the Dixie highway way (a main thoroughfare), about one-quarter mile west of the Widmer property. On the south side of Benore road near the Dixie highway are four small homes which were built some years ago. At the end of Benore road on the west side of the Dixie highway is a tavern with a trash dump adjacent thereto. Between the Benore Club and the Widmer home is a three-track main line of the New York Central Railroad, crossing Benore road at grade, and about one-half mile further to the east is the viaduct of the hump leading into the classification yard of the Michigan Central Railroad. Between the old Club Devon property and the New York Central Railroad crossing and opposite the Widmer farm are the remains of dog kennels of an abandoned dog-racing track, one or two trailers, several sheds and a small packing plant with adjacent stock pens. West of and adjacent to the New York Central Railroad tracks are two fairly large greenhouses. The one-half mile distance between the two railroad crossings is occupied by three residences to the south and, also, two to the north of Benore road. In 1925, Marquette Place, lying west of the Club Devon, was platted for residential purposes, but only one house has been built therein. Within a mile or so south from the Widmer property, along the Dixie highway, are several automobile 'junkyards' used for the storage of wrecked or worn-out motor vehicles, and, also, three notorious gambling resorts.

A great volume of testimony was received pro and con as to the possibility of developing the Widmer property for residential purposes. But the character of the surroundings and the expense of development incident to the platting and installation of water, sewer and other utilities does not warrant the conclusion that plaintiff's property has any potential value for future platting and sale of lots. The evidence fails to show that the operation of the gambling house impairs the value of the Widmer property for industrial development or for agriculture.

Evidence with regard to a number of civil and criminal proceedings in which certain of the defendants were involved, and wherein no admissions or pleas of guilty appear, has been rejected. The record comprises over 600 pages. Page after page relates to extraneous issues, such as whether the proximity of a railroad to property has any effect upon its future development for residential purposes The court was fully enlightened to the extent of boredom regarding various and sundry real estate promotions running the gamut of blighted areas to Ottawa Hills village. Nevertheless, we have endeavored to sift the grain from the chaff and apply the law to the pertinent facts as disclosed by admissible evidence. An attempt was made to introduce testimony with respect to admissions made by the defendant Joe Fretti before the socalled Kefauver committee. The objection to this evidence is sustained because of lack of identification of the voice of Fretti by the witness who attended the hearing but who was not present in the room where the hearing was conducted.

In 1941, certain of the defendants constructed a large gambling casino, known as the Club Devon, across Benore road from plaintiffs' home. Mrs. Widmer's efforts to close the place proved unavailing. In 1942, plaintiff sold the gamblers 33 acres of their farm south of Benore road for $12,500, and the Club Devon continued to operate as a gambling place until padlocked by order of the Common Pleas Court in the spring of 1944. In the criminal proceedings brought against certain of the defendants herein, each was given a workhouse sentence, and imposition of part of the sentences was suspended and the defendants placed on probation during good behavior for a period of three years. Following the closing of the Club Devon, plaintiffs further improved their home and the grounds surrounding it. In November 1946, the defendant Joe Fretti told the plaintiffs that 'our parole will soon be over. We want to open up again. It will either be on State Line road or east of the track.' In May 1947, two parcels of property comprising nine acres south of Benore road and immediately east of the underpass of the Michigan Central Railroad were conveyed to the defendant Hyman Chait, and in 1948 he acquired 15 additional acres. The Benore...