Fairview Township v. Schaefer

CRAIG, Judge.

Although both parties argue this case as a conflict between the statutory powers of a state agency and a political subdivision, the salient issue is not which of two statutes carries greater weight, but whether a court of equity has the authority to intervene and provide specific relief when a nuisance exists.

Dennis L. Schaefer appeals an order by Judge Joyce of the Court of Common Pleas of Erie County, granting Fair-view Township a mandatory injunction requiring Schaefer to remove from the township a live tiger which he maintains in captivity.

*81Schaefer keeps the tiger at his residence in the second class township of Fairview. The tiger, caged by a six-foot-high chainlink fence with a roof, has been declawed. Schaefer intends to defang the animal at a later date. The Pennsylvania Game Commission has authorized Schaefer’s possession of the tiger by issuing, under the guidelines of section 2963 of the Game and Wildlife Code, 34 Pa.C.S. § 2963, an “Exotic Wildlife Possession Permit.” 1

On August 17, 1988, Fairview Township filed a complaint in equity for a preliminary and final injunction in the Common Pleas Court of Erie County, requesting an order mandating removal of the tiger from the township. The township contends that the presence of the tiger is a prohibitable nuisance under section 702, cl. XII, of the Second Class Township Code,2 and a threat to the safety of all persons within the township. Section 702, cl. XLVII, of the Second Class Township Code, 53 P.S. § 65747, authorizes the township to “take all needful means for securing” against such threats.

Schaefer’s response is that the tiger is not a threat to the community, and that the township’s police power under the Second Class Township Code does not supersede the commission’s authority as granted by the Game and Wildlife Code. Additionally, Schaefer asserts that the presence of the tiger does not constitute a nuisance.

On August 29, 1988, Judge Joyce held a hearing on the matter, and after viewing the tiger in its surroundings, made the following findings of fact:

(1) “[A] very real danger presently exists that a person, perhaps even an unknowing or curious child, might approach the properly confined tiger and still sustain injury, possibly of a serious nature;

(2) “[Djespite the inspection and certification of the cage facilities by the Pennsylvania Game Commission, it is diffi*82cult to believe that mere chainlink fencing would be enough to hold back a 600 pound tiger desiring to free itself from its confines for whatever reason. It should be noted that the tiger, already a healthy 225 pounds, has succeeded in pushing the chainlink fence approximately one foot from true vertical so that bulges appear in the fence. It is the court’s opinion that while the small chainlink cage can at this time hold off the tiger’s normal tendency to be free, the fence will be ineffective to withstand the impact of the tiger’s body once it reaches maturity (i.e. approximately 600 pounds);”

(3) “[T]he court noted [at the viewing] that the tiger at one point reached its paw out of the cage and encircled the defendant’s calf with one of its paws. This type of action presents a very real danger to an innocent onlooker, despite the fact that each of the tiger’s paws have been declawed, her rather menacing teeth are intact. In short, the tiger presently possesses the ability to seriously harm an unwary, curious onlooker;”

(4) “[The tiger] most certainly presents a serious risk of harm to all who come into contact with it, even while it is confined to the cage;” and

(5) “[T]he tiger constitutes an ‘attractive nuisance’ that will continue to draw children, and others wanting to get a closer look, towards the tiger’s cage.”

On the basis of the findings,, the trial court ordered Schaefer to remove the tiger from Fairview Township.

Schaefer now appeals to this court, contending that the specific guidelines of the Game and Wildlife Code, to which the commission must adhere when issuing a possession permit, supersede the general police power of section 702, cl. XLVII, of the Second Class Township Code. Additionally, Schaefer asserts that the trial court did not have sufficient evidence to rule that the tiger is a nuisance.

The subject matter before us—possession of an exotic wildlife animal that may also be a nuisance—is one of first impression. However, the Pennsylvania Supreme *83Court has addressed the analogous situation of a lawfully authorized business being challenged as a nuisance.

In Perrin’s Appeal, 305 Pa. 42, 156 A. 305 (1931), an adjoining landowner contested the construction of a gasoline station in a restricted zoning district. Even though zoning officials had granted a permit, the Supreme Court negated the permit and held that

Acts of municipal officers under zoning legislation permitting the use of property for what is or may be a nuisance, do not oust the jurisdiction of equity to determine whether a nuisance in fact exists and should be restrained. It would be contrary to the constitutional guarantee, if, through statute, ordinance, or under a so-called exertion of police power, one’s property could be taken, injured, or destroyed, and one’s health made to suffer from the use of another’s property for the benefit of the latter owner. The use is not relieved of its offensive incidents as far as equity is concerned even though a majority of the owners under a consent ordinance agree that land may be so used; those who do not consent have a right to be heard in a legal forum in opposition to the use. In equity, the court will regard such ordinances in the nature of a fact found or an expression of municipal thought and opinion. Such ordinance may thus aid courts in determining the substantive question involved, but they are not conclusive where the question is one of nuisance.

Id., 305 Pa. at 51, 156 A. at 307.

The court later resolved a similar factual situation by holding that “where a nuisance exists, equity may intervene to enjoin it even though there has been compliance with zoning acts and ordinances.” Mazeika v. American Oil Company, 383 Pa. 191, 194-95, 118 A.2d 142, 143 (1955).

The case of Reid v. Brodsky, 397 Pa. 463, 156 A.2d 334 (1959), parallels our present situation. In Reid, a restaurant owner (Brodsky) purchased property in a residential district for the purpose of operating a taproom-restaurant. He received approval from the Philadelphia zoning authori*84ties and from the Pennsylvania Liquor Control Board. Brodsky also spent $50,000 remodeling and improving the standing building, and to transfer a restaurant liquor license from a previously granted location. Before the restaurant opened, residents of the neighborhood instituted an equity action in the Court of Common Pleas of Philadelphia County to enjoin the opening of the restaurant on the theory of anticipatory nuisance. After the restaurant opened for business, the residents amended their complaint to reflect the theory that the premises now constituted a nuisance in fact.

The trial court enjoined the operation of Brodsky’s business, and, on appeal, the Supreme Court relied on three significant points of law in affirming the decree:

(1) Zoning authority approval does not affect the power of a court of equity to enjoin the restaurant as a nuisance; Id., 397 Pa. at 466 n. 1, 156 A.2d at 336 n. 1.

(2) Whatever may have been spent is immaterial because the owner took a calculated risk bringing a potential nuisance into the neighborhood; Id., 397 Pa. at 466 n. 3, 156 A.2d at 337 n. 3, and

(3) A fair test as to whether something constitutes a nuisance is the reasonableness or unreasonableness of the subject of the complaint in the particular locality and in the manner and under the circumstances of the case. Id., 397 Pa. at 469-70, 156 A.2d at 338.

Schaefer’s receipt of an exotic wildlife possession permit from the Game Commission is analogous to an owner receiving permission from zoning authorities.

Although a zoning authority, like the Game Commission here, receives its power from a statute, the Supreme Court has made clear that a court in equity may intervene to enjoin a lawful business if it becomes a nuisance in fact. The same power of an equity court to intervene must apply when a lawfully possessed exotic wildlife animal becomes a nuisance in fact.

*85Therefore, because we need not address the issue of the extent of the Second Class Township police power, the only remaining issue is whether the trial court had sufficient evidence to find that the tiger is a nuisance in fact, in this case—an attractive nuisance.

Section 339 of the Restatement (Second) of Torts defines an “attractive nuisance” as a place where an artifical condition exists:

(a) ... which the possessor knows or has reason to know that children are likely to trespass, and
(b) The condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and
(c) The children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and
(d) The utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and
(e) The possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children. The trial judge viewed the tiger and considered testimony

from Schaefer, two of his neighbors, a township supervisor, and the Executive Director of the Erie Zoological Society in making its findings of fact.

The township supervisor testified as to the residential nature of Schaefer’s neighborhood, complaints about the tiger received by the supervisors, and the lack of other exotic wildlife in the neighborhood.

One neighbor reiterated the supervisor’s testimony, and described an incident where he and his family saw the tiger sprawled across the top of a car in Schaefer’s driveway.

The Executive Director of the Erie Zoological Society, James Rhea, testified that tigers are “predators” capable of getting “out of hand at any given time,” regardless of *86whether the tiger is declawed. He further stated that it is not possible to domesticate a tiger, and explained that professional care is the key to possessing a tiger safely. Rhea also agreed that a residential area is not an appropriate place for a tiger to reside because it poses a threat to the safety and welfare of area residents.

Schaefer testified that he knows of no other live tigers in Fairview Township. Furthermore, he stated that he resides alone and works from 9 to 5, at which time the tiger is left unattended. Schaefer also acknowledged that tigers are wild animals that, for no reason, could bite a person. Moreover, Schaefer confirmed that on at least one occasion, the tiger was sprawled across the top of a car. The confirmation of the incident is significant because Schaefer had earlier responded to the question of describing the living conditions of the tiger at his residence by stating “[s]he has a large cage, clean cage. By law, I keep the cage locked at all times, that’s one of the requirements." (Emphasis added).

Schaefer’s testimony is an admission of his awareness that the Game Commission will not grant a possession permit until it is satisfied that the provisions for housing and caring are adequate (See 34 Pa.C.S. § 2963), but that he breached the requirement that the tiger remain securely caged to protect the public.

Finally, we consider the personal observations made by the trial judge upon viewing the tiger. The court noted that the fence had been pushed “approximately one foot from true vertical so that bulges appear in the fence,” that “the tiger at one point reached its paw out of the cage and encircled the defendant’s calf with one of its paws,” and that “her rather menacing teeth are intact.”

Because the record contains overwhelming evidence to substantiate a finding that the tiger represents an unreasonable risk of death or serious bodily harm to children, the trial court, sitting in equity, rightfully found the tiger to be an attractive nuisance, and therefore, properly issued the injunction.

*87Accordingly, we affirm the order of the Court of Common Pleas of Erie County.

ORDER

NOW, August 4, 1989, the order of the Court of Common Pleas of Erie County, dated September 16, 1988, at No. 59-E-1988, is affirmed.

. Tigers are defined as “exotic wildlife”, under section 2961 of the Game and Wildlife Code, 34 Pa.C.S. § 2961.

. Act of May 1, 1933, P.L. 103, as amended, 53 P.S. § 65712.