Williams v. Oeder

• Decision Date: 22 May 1995
• Docket Number: Nos. CA94-01-005,CA94-02-008 and CA94-02-009,CA94-01-007,s. CA94-01-005
• Citation: 659 N.E.2d 379,103 Ohio App. 3d 333
• Parties: WILLIAMS et al.; Bishop et al., Appellants and Cross-Appellees, v. OEDER, d.b.a. Carl E. Oeder & Sons Sand & Gravel, et al., Appellees and Cross-Appellants; Barrett Paving Materials, Inc., Appellee. *
• Court: Ohio Court of Appeals

Page 333

103 Ohio App.3d 333

659 N.E.2d 379

WILLIAMS et al.; Bishop et al., Appellants and Cross-Appellees, v.OEDER, d.b.a. Carl E. Oeder & Sons Sand & Gravel, et al., Appellees and Cross-Appellants; Barrett Paving Materials, Inc., Appellee. ^*

Nos. CA94-01-005, CA94-01-007, CA94-02-008 and CA94-02-009.

Court of Appeals of Ohio Twelfth District, Clermont County.

Decided May 22, 1995.

Young & Alexander Co., L.P.A., and A. Mark Segreti, Dayton, Jr., for appellants and cross-appellees, Iseral and Una Vee Bishop.

John F. McLaughlin, Cincinnati, for appellees and cross-appellants, Carl E. Oeder and Sons Sand and Gravel.

Lyons & Fries Co., L.P.A., and William J. Mulvey, Cincinnati, for appellee, Barrett Paving Materials, Inc.

James J. Montgomery and Kevin J. Hopper, Cincinnati, for appellee and cross-appellant, Plainville Concrete Services, Inc.

WILLIAM W. YOUNG, Judge.

Plaintiffs-appellants and cross-appellees, Iseral and Una Bishop("appellants"), appeal from a jury verdict in favor of defendants-appellees and cross-appellants, Barrett Paving Materials, Inc.("Barrett"), Plainville Concrete Services, Inc.("Plainville"), and Carl E. Oeder & Sons Sand & Gravel ("Oeder").The jury found appellees and cross-appellants("appellees") not liable for either nuisance or trespass.

Oeder, Barrett, and Plainville operate a sand and gravel processing facility, an asphalt plant, and a concrete plant, respectively.Appellants are two of six original plaintiffs who live in the immediate vicinity and who sued appellees under common-law theories of nuisance and trespass.Appellants claim that appellees' operations generate dust, noise and odors that interfere with their use and ownership of their property.

Iseral Bishop purchased his property on Turtle Creek Road in the early 1960s.His wife, Una, joined him there after their marriage.Oeder, owner of the property upon which appellees conduct their operations, purchased the tract and some miscellaneous on-site equipment in 1972.Before Oeder's purchase, Ohio Gravel Company leased the mineral rights to the tract.Oeder erected a concrete plant on the site in the year it was purchased.Plainville leased the concrete plant in 1986.In 1987, Barrett bought a blacktop plant built on the site in 1980.There was testimony that there had been gravel mining in the immediate area since the 1930s, before the construction of any of the original plaintiffs' homes.

On December 8, 1993, the trial court granted partial summary judgment for appellees, concluding there was no evidence of negligence supporting a qualified nuisance action.The cause proceeded to trial on the issues of absolute nuisance and trespass.The jury eventually found for appellees.Appellants filed a timely notice of appeal.

Oeder and Plainville filed cross-appeals in this case.They set forth a total of three cross-assignments of error based on the trial court's earlier decision to allow appellants to proceed to trial on the issue of absolute nuisance.However, the cross-appeals were not filed within time, and this court does not have jurisdiction to consider them.¹

On appeal, appellants set forth eight assignments of error.Under their first assignment of error, appellants argue that the trial court abused its discretion in instructing the jury on the "coming to the nuisance defense."The court, quoting in part from Eller v. Koehler(1903), 68 Ohio St. 51, 57, 67 N.E. 89, 91, issued the following instruction:

"[The coming to the nuisance] defense may limit any Plaintiffs from recovering on their nuisance claim if that Plaintiff knew of the situation or in the exercise of ordinary care should have known of the situation and voluntarily placed himself or herself in the proximity of an activity which he or she now alleges to be a nuisance.['][O]ne who becomes a resident of a trading or manufacturing neighborhood, or who remains while in the march of events a residence district gradually becomes a trading or manufacturing neighborhood should be held bound to submit to the ordinary annoyances, discomforts and injuries which are fairly incidental to the reasonable and general conduct of such business in his chosen neighborhood.['] "

In Eller, the Supreme Court implicitly recognized that priority of occupation may be considered along with other evidence in determining whether the use of a nuisance on defendant's property is unreasonable.In Gruic v. Knight(App.1933), 15 Ohio Law Abs. 502, 505, the court explicitly recognized this argument, stating: "The fact that [the plaintiff] voluntarily places himself in a situation whereby he suffers inconvenience and injury from my use of my estate is of importance in determining whether said use of my estate is reasonable and not injurious to such a reasonable use of his estate as he is entitled to."

Appellants emphasize that Oeder did not purchase its property until 1972, after they had purchased their lot.However, this court believes that the defense, where applicable, should be premised on the continuity of the claimed nuisance, not necessarily on the continuity of the named defendants.

"Coming to the nuisance" does not constitute an absolute bar to a nuisance complaint.However, the argument may be considered as one factor among others relevant in determining whether a defendant's operations are unreasonable.This court concludes that the trial court did not abuse its discretion in instructing the jury that it could consider the "coming to the nuisance defense."Appellants' first assignment of error is overruled.

Appellants complain under their second assignment of error that the trial court erred in instructing the jury that it could find appellees liable in trespass only if appellants established that appellees' operations caused "substantial physical harm" to their property.Appellants asked the trial court to instruct the jury that appellees were liable for trespass if their operations caused dust or dirt to fall on appellants' property.

Trespass is often described as any intentional invasion of a plaintiff's interest in the exclusive possession of his or her property.In contrast, a nuisance requires a substantial and unreasonable interference with the plaintiff's use and enjoyment of his or her property.Traditionally, an intrusion on property by airborne particulates was actionable under a nuisance claim but did not constitute a trespass.SeeAnnotation(1980), 2 A.L.R. 4th 1054, 1055.²

However, a number of courts nationwide now recognize that the invasion of airborne particulates may interfere with a complainant's interest in exclusive possession and may therefore constitute a trespass.In Borland v. Sanders Lead Co., Inc.(Ala.1979), 369 So.2d 523, a widely cited case on the subject, the Alabama Supreme Court laid out the elements of trespass by airborne pollutants:

"In order to recover in trespass for this type of invasion [in this case pollution emitted from the defendant's smoke stack]a plaintiff must show (1) an invasion affecting an interest in the exclusive possession of his property; (2) an intentional doing of the act which results in the invasion; (3) reasonable foreseeability that the act done could result in an invasion of plaintiff's possessory interest; and (4) substantial damages to the res."(Emphasis added.)Id. at 529.

Traditionally, any tangible invasion of property constituted a trespass and entitled a landowner to at least recover nominal damages.However, such a rule is not appropriate where the incursion is the result of airborne particulates.In Bradley v. Am. Smelting & Refining(1985), 104 Wash.2d 677, 691, 709 P.2d 782, 791, the court considered the "substantial damages" element for a cause of trespass based on airborne particulates and stated: "No useful purpose would be served by sanctioning actions in trespass by every landowner within a hundred miles of a manufacturing plant.Manufacturers would be harassed and the litigious few would cause the escalation of costs to the detriment of the many."

Although "substantial damage" is not a traditional element of trespass, trespass was not traditionally available as a remedy for airborne particles and pollutants deposited on a plaintiff's land.This court approves of the elements of trespass by airborne pollutants set forth in Borland and adopted in Bradley.The trial court did not err in instructing the jury that appellees were culpable in trespass for causing dust or dirt to fall on appellants' property only if the jury concluded that appellants had established "substantial damages."Appellants' second assignment of error is overruled.

Under their third assignment of error, appellants complain that the trial court abused its discretion in excluding evidence that dust emissions from appellees' operations exceeded national Environmental Protection Agency("EPA") Ambient Air Quality Standards.Appellants' fourth assignment of error involves the trial court's refusal to allow a defense expert to calculate for the jury dust emissions from appellees' operations using "emission factors" created by the United States EPA and utilized by the Ohio EPA.We will address both assignments of error together.

On November 11, 1993, appellees filed a motion in limine to preclude appellants from referring to Ohio Ambient Air Quality Standards at trial.The trial court apparently issued an order on this motion; however, appellants did not make the trial court's order part of the record.

During the trial, Tony Wisbeth, an environmental engineer, and Charles Zimmer, an expert in air quality testing and analysis, testified for appellants.The trial court would not allow these witnesses to testify that the result of certain air quality tests exceeded EPA ambient air quality standards.The court also prevented the witnesses from using "emission factors" in an attempt to demonstrate that dust probably originated from appellees' operations.

Both appellants and appellees cite R.C....