(dissenting).
I dissent.
In the trial court, Whitaker was denied summary judgment based upon a motion to dismiss. The majority opinion affirmed. In my opinion, plaintiffs’ complaint did not state a claim for relief and was prematurely filed.
On May 20, 1981, plaintiffs filed a complaint against defendants. It alleged that Dona Ana Planning Commission granted Whitaker a special use permit for the Whitaker Dairy. Plaintiffs appealed to the county commission. On February 18, 1981, by a 2 to 1 vote, the county commissioners denied the appeal. Under plaintiffs’ Cause of Action, they asserted twelve reasons why the district court should enjoin the county commission from issuing the proposed special use permit because it would constitute a public nuisance, “and why the court should grant from the defendants damages.” Under the prayer for relief, plaintiffs requested that the county commission be enjoined from issuing a special use permit, “in the alternative, that defendant, B. F. Whitaker, be enjoined from building a dairy in the area thereby creating a public nuisance which will cause irreparable injury to the community,” and in the alternative, the court award damages to plaintiffs “but in no event should be less than” $6,000,000.00.
“Our cases have rather consistently held that the prayer is either not part of the complaint or not part of the statement of the cause of action.” Heth v. Armijo, 83 N.M. 498, 501, 494 P.2d 160 (1972).
Plaintiffs’ complaint did not seek an injunction against Whitaker. It only sought damages if it could prove that the dairy was a public nuisance.
Whitaker filed a motion to dismiss plaintiffs’ complaint with prejudice on three grounds: (1) the process issued was void ab initio; (2) plaintiffs failed to meet a statutory filing deadline and the court lacked jurisdiction; and (3) plaintiffs failed to state a claim upon which relief can be granted. Whitaker filed no affidavits. Neither did plaintiffs.
The county commission also filed a motion to dismiss on five grounds, together with an affidavit of the county clerk which included as exhibits, documents in the clerk’s office.
Arguments were had and the trial court entered its Order. An application for an interlocutory appeal can be presented to this Court, if the trial court believes that his Order involves a controlling question of law as to which there is substantial ground for difference of opinion, and so states in his Order. When an interlocutory appeal is granted, we must carefully scrutinize the Order entered and its application to the proceedings below. Regardless of points raised and briefs filed, we should not sidestep the Order. To reach a fair and equitable result, our duty is to analyze the Order and determine what questions of law are involved over which there is ground for difference of opinion. The court found:
1) That because affidavits have been filed ... the Motion to Dismiss by ... County Commissioners is now a Motion for Summary judgment ....
2) That, as to the claims against ... County Commissioners ... an appeal from the granting of a special use permit to ... Whitaker was heard on February 18, 1981 and a decision denying the appeal was entered on said date.
3) That Plaintiffs filed this Complaint on May 20, 1981.
4) That Plaintiff failed to file a petition in District Court within thirty days as required by Sections 3-21-8 and 3-21-9, NMSA 1978.
5) That the ... County Commissioners' issuance of a special use permit to ... Whitaker has become final.
6) That it has been stipulated by all parties that ... Whitaker is not yet operating a dairy, nor has he begun the construction of a dairy.
7) That ... Whitaker’s Motion for Summary judgment should be denied. [All emphasis added.]
The court ordered that the county commissioners’ summary judgment was well taken and “FURTHER ORDERED that ... Whitaker’s Motion for Summary Judgment is denied. That this Order denying ... Whitaker’s Motion to Dismiss involves a controlling question of law....” [Emphasis added.]
These facts have been finally established:
(1) Whitaker has a special use permit to build a dairy.
(2) The trial court did not enjoin Whitaker from building the dairy.
(3) Whitaker cannot be enjoined from building the dairy.
(4) Whitaker has full authority to build a dairy. It is not, therefore, a public nuisance.
(5) Absent any plans, specifications and its operation, it is impossible to determine whether the dairy will be a private nuisance. Guess or speculation cannot be substituted for the facts.
(6) If plaintiffs have a claim for relief for damages against Whitaker based upon a private nuisance, plaintiffs must wait until the dairy is built and operated.
Logic and reason does not require the citation of authority. The majority opinion relies on Phillips v. Allingham, 38 N.M. 361, 33 P.2d 910 (1934) and Koeber v. Apex-Albuq Phoenix Express, 72 N.M. 4, 380 P.2d 14 (1963).
In Phillips, the trial court permanently enjoined Phillips from having, maintaining or operating two above-ground gasoline storage tanks, in connection with his filling station, because the tanks were a nuisance. The judgment was reversed. In the course of its opinion, the court quoted authority to the effect that an injunction will be granted where the act or thing threatened is a nuisance per se, or necessarily will become a nuisance.
Koeber followed Phillips but affirmed an injunction issued by the trial court.
In the instant case, no injunction was issued by the trial court.
Plaintiffs claim that the construction and operation of a dairy is a public nuisance. Section 30-8-1, N.M.S.A.1978 reads in pertinent part:
A public nuisance consists of knowingly creating, performing or maintaining anything affecting any number of citizens without lawful authority .... [Emphasis added.]
With a special use permit granted by the county commissioners, Whitaker has lawful authority to proceed. Therefore, the construction and operation of a dairy is not a public nuisance. If a nuisance at all, it would have to be found to be a private nuisance. Jellison v. Gleason, 77 N.M. 445, 423 P.2d 876 (1967). Plaintiffs’ .complaint can not now state a claim upon which relief can be granted.
The trial court found “that ... Whitaker’s motion for summary judgment be denied.” It ordered “that ... Whitaker’s Motion for Summary Judgment is denied.” The trial court made no finding as to how Whitaker’s motion to dismiss plaintiffs’ complaint became a motion for summary judgment. Whitaker did not file a motion for summary judgment nor any affidavits in support of his motion to dismiss plaintiffs’ complaint. Furthermore the “finding” was not a finding of fact. No fact or reason is stated to show why the “summary judgment” should be denied. The “finding” is a conclusion of law without any support in the findings to support a judgment that the “summary judgment” should be denied. The trial court erred in holding that defendant’s “Motion for Summary Judgment” is denied.
Plaintiffs did not appeal from the Order of the court. That portion of the Order pertaining to the action of the county commission should be affirmed. That portion of the Order that denied Whitaker’s motion for summary judgment should be reversed and remanded to the trial court to determine whether Whitaker’s motion to dismiss should be granted or denied.