Winget v. Winn-Dixie Stores, Inc.

• Decision Date: 25 March 1963
• Docket Number: WINN-DIXIE,No. 18042,18042
• Citation: 130 S.E.2d 363,242 S.C. 152
• Parties: L. E. WINGET and Juretta Ann Winget, Respondents, v.STORES, INC., and John Lloyd, Appellants.
• Court: South Carolina Supreme Court

Page 363

130 S.E.2d 363

242 S.C. 152

L. E. WINGET and Juretta Ann Winget, Respondents, v. WINN-DIXIE STORES, INC., and John Lloyd, Appellants.

No. 18042.

Supreme Court of South Carolina.

March 25, 1963.

Weinberg & Weinberg, Sumter, Robinson, McFadden & Moore, Columbia, for appellants.

R. Kirk McLeod, Sumter, for respondents.

LEWIS, Justice.

Plaintiffs instituted this action for damages alleged to have been sustained from the location and operation by the defendants of a grocery supermarket in such a manner as to constitute a nuisance and for an order perpetually restraining the defendants from using the property where the supermarket was located for a retail grocery business or for any other business purpose. The trial of the case resulted in a judgment in favor of the plaintiffs for the sum of $5,000, actual damages, and a denial by the trial judge of injunctive relief. From the judgment entered in favor of the plaintiffs, the defendants have appealed.

Upon the trial of the case and at the conclusion of the testimony, the defendants moved for a directed verdict in their favor upon the ground that there was no evidence that the location or operation of the supermarket constituted a nuisance. This motion was refused and the first question to be decided is whether the trial court erred in so doing.

The home of the plaintiffs is located in Sumter, South Carolina, adjacent to a grocery supermarket operated by the defendant Winn-Dixie Stores, Inc., and managed at the time of the institution of this action by the defendant John Lloyd. The supermarket began operations on October 1, 1959 and this action was instituted about six weeks later, aleging that the supermarket was a nuisance in that (1) it was located on a lot that was not a proper location for a grocery business, (2) in the operation of the store the defendants allowed large tractors and trailers to unload produce late at night with consequent noise and glare of lights, (3) large exhaust fans were allowed to blow from the store over the lot of the plaintiffs damaging their property and adding to the plaintiffs' harassment, (4) floodlights erected upon defendants' property were permitted to cast a glaring light over plaintiffs' property destroying and disturbing the comfort and privacy of the home, (5) trash trucks and street sweepers operated on the premises at late night hours, and (6) the store attracted crowds of people, and many automobiles which caused noise and unhealthy fumes, blocked traffic and generally disturbed the peace and quiet of the neighborhood.

The plaintiffs have alleged, therefore, that the supermarket in the instant case was a nuisance because of both (1) its location and (2) the manner of its operation. In rulign upon the motion of the defendants for a directed verdict the lower court in effect held that there was no evidence to sustain the allegations that the supermarket was a nuisance because of its location, but submitted the issue to the jury as to whether the store was operated in such a manner as to cause injury or damage to plaintiffs.

We have held that the operation of a retail grocery is not a nuisance per se. It is a lawful business and, if the operation of the supermarket in question is a nuisance at all, it mut be such by reason of its location or the manner in which it was operated. Strong v. Winn-Dixie Stores, Inc., 240 S.C. 244, 125 S.E.2d 628. See: Bowlin v. George, 239 S.C. 429, 123 S.E.2d 528; Peden v. Furman University et al., 155 S.C. 1, 151 S.E. 907.

The trial court properly ruled that the facts failed to sustain the plaintiffs' contention that the store was a nuisance because of its location. The store in question is located on East Calhoun Street along which the property had been previously zoned by the City of Sumter for retail business for a depth of 200 feet on each side thereof. The location selected by the defendant Winn-Dixie Stores, Inc., for its store was a lot which had a depth from East Calhoun Street of 250 feet and extended back to the property of the plaintiffs. The lot on which the store is located is at the corner of East Calhoun and Baker Streets. The property of the plaintiffs is located on Baker Street immediately to the rear of the store lot. Because the lot extended 50 feet beyond the depth previously zoned for retail business on East Calhoun Street, application was made to the Zoning Board to rezone for retail business this additional fifty feet which had previously been zoned for residential purposes, so that the entire lot could be utilized by the defendants in the operation of a retail grocery. Hearings were held at which one of the plaintiffs appeared in opposition. The petition to rezone the additional 50 feet, which is immediately adjacent to the property of plaintiffs, was granted and the entire lot on which the store in question is now located was zoned for retail business and permission granted to operate a retail grocery thereon. No review of the ruling of the Zoning Board was sought. Subsequent to the foregoing action by the Zoning Board, the building for the supermarket was constructed and occupied by the defendants.

The business of the defendants is a lawful one and was located in an area which had been zoned by the City of Sumter for retail business and at a location which the Zoning Board determined to be suitable for a retail grocery. The record shows that every requirement of the municipal authorities was met in establishing the business in question, both in the location and the construction of the building. There is no evidence that the building was constructed in such manner as to interfere with the rights of others. Under such circumstances, it cannot be held that the location of the business in the area in question constituted a nuisance.

The fact, however, that one had been issued a license or permit to conduct a business at a particular location cannot protect the licensee who operates the business in such a manner as to constitute a nuisance. 66 C.J.S. Nuisances § 17c, p. 763; 39 Am.Jur. 486, Section 208.

Relying upon the foregoing legal principle, the plaintiffs contended that the defendants operated the supermarket in such a way as to work hurt, inconvenience, injury and damage to them, and that the testimony presented an issue of fact for the jury on this issue.

In resolving the issues relating to a private nuisance we must deal with the conflicting interests of landowners. The right of one to make such lawful use of his property as he may desire must be applied with due regard to the correlative right of the other to be protected in the reasonable enjoyment of his property. The precise limits of each are difficult to define. The problem is striking a balance as nearly as possible between their respective rights. Young et al. v. Brown, 212 S.C. 156, 46 S.E.2d 673.

An owner of property even in the conduct of a lawful business thereon is subject to reasonable limitations. In the operation of such business he must not unreasonably interfere with the health or comfort of neighbors or with their right to the enjoyment of their property. If a lawful business is operated in an unlawful or unreasonable manner so as to produce material injury or great annoyance to others or unreasonably interferes with the lawful use and enjoyment of their property, it will constitute a nuisance. 39 Am.Jur. 298, Section 16.

On the other hand, every annoyance or disturbance of a landowner from the use made of property by a neighbor does not constitute a nuisance. The question is not whether plaintiffs have been annoyed or disturbed by the operation of the business in question, but whether there has been an injury to their legal rights. People who live in organized communities must of necessity suffer some inconvenience and annoyance from their neighbors and must submit to annoyances consequent upon the reasonable use of property by others. Antonik v. Chamberland, 81 Ohio App. 465, 78 N.E.2d 752; 39 Am.Jur. 326, Section 44.

Whether a particular use of property is reasonable and whether such use constitutes a nuisance depends largely upon the facts and no definite rule can be laid down for the determination of the question. As stated in 39 Am.Jur. 298, Section 16: 'What is a reasonable use and whether a particular use is a nuisance cannot be determined by any fixed general rules, but depends upon the facts of each particular case, such as location, character of the neighborhood, nature of the use, extent and frequency of the injury, the effect upon the enjoyment of life, health, and property, and the like. A use of property in one locality and under some circumstances may be lawful and reasonable, which under other circumstances would be unlawful, unreasonable, and a nuisance.'

In the instant case the conflict is between the rights of the plaintiffs who reside in a residential area adjacent to a district zoned for retail business and those of the defendants who operate a retail grocery supermarket in such business area. The supermarket was located in an area zoned by the City for the conduct of such business and the normal and necessary incidents to the operation thereof cannot be condemned as a nuisance.

The plaintiffs, among other things complain that (1) the store has attracted crowds of people, and many automobiles which caused noise, unhealthy fumes, blocked traffic and...