City of Aberdeen v. Wellman

FOSHEIM, Chief Justice.

Allan and Arlene Wellman (appellants) appeal a judgment which declared their business use of real property a public nui-*205sanee and enjoined certain activities. We affirm.

Appellants own three lots in a subdivision less than one mile north of the Aberdeen city limits. The area has been platted but is largely undeveloped. The land north of the disputed area is unplatted farm ground. The subdivision is bounded on the south by a well-travelled, hard surface road. Across that road, and to the south, is a junior high school and a tennis court/swimming pool complex.

In 1973, appellants entered the gravel and road construction business. They use the property for office, storage, repair and safekeeping of construction equipment. They have also piled gravel on one of the lots.

In 1981, the City of Aberdeen (City) commenced an action against appellants alleging that appellants were creating a nuisance which they asked the court to abate. The complaint was amended to include, as plaintiffs, several owners of abutting property. The complaint raised other issues which are not involved in this appeal.

The trial court found that appellants operated payloaders, bulldozers, road graders, gravel trucks, and other machinery in close proximity to adjoining property. Appellants started large engines in the early morning hours and operated noisy vehicles without mufflers. They painted equipment with a spray paint which emitted odors. Welding operations, diesel trucks and burning in open containers produced smoke and fumes. Traffic from employees and customers crossed the property of adjacent land owners. Equipment, machinery, inoperable vehicles, lumber and wooden pallets were stored on the lots.

The trial court concluded that appellants created a public nuisance with the sight, noise and fumes produced by their business activities. The nuisance was permanently enjoined.

SDCL 21-10-1 provides:

A nuisance consists in unlawfully doing an act, or omitting to perform a duty, which act or omission either:
(1) Annoys, injures, or endangers the comfort, repose, health, or safety of others;
(2) Offends decency;
(3) Unlawfully interferes with, obstructs, or tends to obstruct, or renders dangerous for passage, any lake or navigable river, bay, stream, canal, or basin, or any public park, square, street, or highway;
(4) In any way renders other persons insecure in life, or in the use of property-

A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon the individuals may be unequal. SDCL 21-10-3.

The existence of a nuisance is subject to a rule of reason. It involves the maintenance of a balance between the right to use property and the right to enjoy property unaffected by others’ uses.

The ultimate question in each cause is whether the challenged use is reasonable in view of all of the surrounding circumstances. Having regard for the needs and methods of defendant, the degree of discomfort and injury occasioned plaintiff in person or in the enjoyment of his property, and the present use and trends of use of surrounding property, if the use made by defendant is not such as an ordinary man would make, and the resulting discomforts and injuries are not such as people of common sensibilities and tastes should be required to endure, the questioned use is unreasonable.

Johnson v. Drysdale, 66 S.D. 436, 440, 285 N.W. 301, 304 (1939). Additionally, a nuisance must be a condition which substantially invades and unreasonably interferes with another’s use, possession, or enjoyment of his land. Greer v. City of Lennox, 79 S.D. 28, 107 N.W.2d 337 (1961).

In Town of Colton v. South Dakota Cent. Land Co., 25 S.D. 309, 312-313, 126 N.W. 507, 508 (1910) we said:

*206Where a municipal corporation is ... clothed with express power to declare what shall constitute a nuisance, its decision, if reviewable by the courts, should be sustained unless palpably unreasonable.

The trial court’s findings of fact are presumptively correct. Hilde v. Flood, 81 S.D. 25, 130 N.W.2d 100 (1964). They shall not be set aside unless clearly erroneous. SDCL 15-6-52(a); Hersrud v. Hersrud, 346 N.W.2d 753 (S.D.1984); Langerman v. Langerman, 336 N.W.2d 669 (S.D.1983). We cannot say the evidence fails to support the court’s findings.

Appellants correctly note that they commenced their gravel and road construction business over ten years ago without complaint. This does not, however, render their activity any less a nuisance. A right to maintain a public nuisance cannot be so acquired. City of Deadwood v. Hursh, 30 S.D. 450, 138 N.W. 1122 (1912). SDCL 21-10-4 specifically provides that no lapse of time can legalize a public nuisance which amounts to an actual obstruction of a public right.

Appellants argue that the remedy invoked was too harsh because the judgment essentially enjoined their entire business operation upon the lots in question. Actually, the court permitted limited business activities such as storing and repairing equipment inside buildings. It also permitted appellants to continue conducting business from their residence office. Even though the injunction against full business activity will likely cause economic damage, that factor is not controlling. Whether a use of property creating an alleged nuisance is reasonable cannot be gauged solely by the necessities of the users. Johnson v. Drysdale, 66 S.D. 436, 285 N.W. 301. It was the province of the trial court to enjoin all business activities which caused the nuisance, even though it may result in terminating the present use of the property.

A municipality can declare and abate a public nuisance without the aid of, or resorting to, zoning ordinances. SDCL 9-29-13 grants every municipality the express power “to declare what shall constitute a nuisance and prevent, abate, and remove the same.” This statute was enacted in 1890 in essentially the form it now reads. SL 1890, ch. 37, art. V, § 1, subdiv. 60. SDCL 9-29-1 authorizes a municipality to exercise jurisdiction over all territory within one mile of the corporate limits. In City of Huron v. Bank of Volga, 8 S.D. 449, 66 N.W. 815 (1896), this court held that a municipal corporation, in the exercise of its powers, may, as here, invoke the aid of a court of equity. It follows that a municipality is empowered to maintain an action to abate a public nuisance within one mile of its corporate borders.

We affirm.

WOLLMAN, DUNN and MORGAN, JJ., concur. HENDERSON, J., concurs in part and dissents in part.