Jones v. Queen City Speedways, Inc.

172 S.E.2d 42 (1970)

276 N.C. 231

Murle B. JONES et al. v. QUEEN CITY SPEEDWAYS, INC.

No. 56.

Supreme Court of North Carolina.

January 30, 1970.

*47 Grier, Parker, Poe, Thompson, Bernstein, Gage & Preston by Gaston H. Gage and Joseph W. Grier, Jr., Charlotte, for plaintiff appellants.

Berry & Bledsoe by Louis A. Bledsoe, Jr., and C. Ralph Kinsey, Jr., Charlotte, for defendant appellee.

MOORE, Judge.

The question presented is: Did the trial court err in not abating the nuisance as found by the jury and by permitting the defendant to continue operation under the regulations imposed by the judgment?

The operation of a motor vehicle speedway is a lawful enterprise, and therefore its operation is not a nuisance per se. However, under varying circumstances, the operation of a speedway could be a private nuisance per accidens. Hooks v. International Speedways, Inc., 263 N.C. 686, 140 S.E.2d 387. In Hooks the defendant proposed to build a motor vehicle race track some 2500 feet from a rural church. The church sought to permanently enjoin an alleged prospective private nuisance. In affirming an order continuing a temporary injunction against the construction of the track until the trial on the merits, the Court said:

"Where a nuisance is private and arises out of the manner of operating a legitimate business or undertaking, a court of equity will, of course, do no more than point to the nuisance and decree adoption of methods calculated to eliminate the injurious features. Rohan v. Detroit Racing Asso., supra Mich. 326, 22 N.W.2d 433, 166 A.L.R. 1246 (1946)]. In other words, a court of equity will not outlaw the entire operation *48 if a decree restricting the time or method of operation will eliminate the injury. But if regulation will not abate the nuisance, the entire operation will be enjoined. "Mere noise may be so great at certain times and under certain circumstances as to amount to an actionable nuisance and entitle the party subjected to it to an injunction. Kohr v. Weber, supra [402 Pa. 63, 166 A.2d 871 (1960)]. To amount to a nuisance, noise must be unreasonable in degree. Where noise accompanies an otherwise lawful pursuit, whether such noise is a nuisance depends on the locality, the degree of intensity and disagreeableness of the sounds, their times and frequency, and their effect, not on peculiar and unusual individuals but on ordinary, normal and reasonable persons of the locality." (Emphasis added.)

The following ordinance of the city of Charlotte applies to the perimeter zoning area within which plaintiffs' homes and defendant's race track are located:

"Section 23-30. Noises. Every use, activity and process shall be so operated that regularly recurring noises are not disturbing or unreasonably loud, and do not cause injury, detriment or nuisance to any person. Every use, activity and process in business and industrial districts shall be so operated that regularly recurring noises, as detected by the human sense of hearing, without instruments, at the adjoining residential or office district boundary lines, shall not exceed the normal noise level generated by uses permitted in residential and office districts. (Ord. No. 62, 1-29-62)."

Although the trial court did not specifically refer to this ordinance or find that defendant by the operation of its race track had violated its terms, the jury's verdict and the court's findings of fact Nos. 11 and 14 clearly show a violation. The mere violation of a municipal ordinance does not constitute a nuisance, but if the actual thing is a nuisance or in the nature thereof and it is done or maintained in violation of a municipal ordinance, it may constitute such nuisance as against which relief may be obtained by one who suffers special and peculiar injury of an irreparable nature therefrom. 66 CJ.S. Nuisances § 78.

In Barrier v. Troutman, 231 N.C. 47, 55 S.E.2d 923, the jury found that an airport was so located and used that planes operating to and from it constituted a nuisance to the plaintiff. The Court held:

"In the case at bar the verdict of the jury established the fact that the airport of the defendants was so located and used that planes operating to and from it constituted a nuisance `as alleged in the complaint.' This finding was without exception by the defendants. The complaint alleged a private nuisance as distinguished from a public nuisance, that is, that the described injuries, discomforts, and annoyances resulted from violation of plaintiff's private rights rather than those common to the public generally * * *. Hence, we think the plaintiff was entitled to the remedy by injunction, restraining the continued use and operation of the airport in such a way as to injure the plaintiff in the manner alleged in his complaint."

Recent cases from other jurisdictions deal with situations similar to the case at bar. In the Pennsylvania case of Kohr v. Weber, 402 Pa. 63, 166 A.2d 871 (1960), the Court found:

"[The defendant] owns in Manor Township, Lancaster County, a piece of land equipped with facilities for an airport and a race track, the latter consisting of a macadam strip approximately 3,000 feet long enough and wide enough to accommodate two racing automobiles or four motorcycles. The track is known as a `drag strip.' On Saturday nights, as well as on Fridays when a holiday falls on either Friday or Saturday, races are run on the `drag strip' from 6 p. m. until midnight. Occasionally the races *49 are in operation as late as 2 a. m. Sunday. The loud noises, glaring illumination, and swirling dust clouds which inevitably accompany an operation of this character caused such annoyance and discomfort to residents of the area that sixteen of them applied to the Court of Common Pleas of Lancaster County for an injunction against [defendant] and the operator of the race track * * *."

In Kohr the Court also found that there were some two hundred dwellings located within a radius of one-half mile of the race track. In affirming the injunction against the racing operation, the Pennsylvania Court said:

"The appellants argue that if the Court was disposed to impose some restraint on the defendants, the injunction should apply only to a diminution of the noise and illumination. But noise and artificial light are as integral parts ornight-drag-racing as smoke, sound and color make up the phenomenon of fireworks. For spectators to view the races after sundown, artificial illumination is indispensable and to think of a silent automobile or motorcycle race is to conjure up what is mechanically impossible. Thus, the only remedy possible under the circumstances was to restrain the drag racing completely."

To like effect, in Town of Bedminster v. Vargo Dragway, Inc., 434 Pa. 100, 253 A.2d 659 (1969), the Pennsylvania Court permanently enjoined the operation of a drag strip which was located in an area primarily residential and farming in character with about 62 houses within one mile of the track. With reference to the equities involved, the Court made the following statement:

"While the record shows that the [defendants] expended a sum in excess of $80,000.00 in connection with the construction of this track and other improvements, they took a `calculated' risk in so doing. Granting that drag strip racing is not a nuisance per se, yet the instant record speaks clearly and emphatically to the effect that the operation of this track has become a nuisance in fact. Balancing the equities between the parties, we believe that the rights of those occupying properties adjoining or in the neighborhood of this track are paramount to the rights of the [defendants], and that the former must be protected by equity in the enjoyment of their homes."

In the instant case, in setting out the requirements and conditions upon which he was willing to authorize the defendant to operate its track, the learned trial judge was undoubtedly seeking to "balance the equities" between the parties and to follow the dictum stated in Hooks v. International Speedway, Inc., supra: "In other words, a court of equity will not outlaw the entire operation if a decree restricting the time or method of operation will eliminate the injury." This statement must be restricted to the facts of that case. In Hooks a rural church was situated some 2500 feet from the proposed track and an order which would have prevented races while church services were being held might well have provided all the protection needed. The Court did not envision the quoted statement as authorizing the Superior Court either to blueprint or supervise the operation of a race track, particularly where, as in the case at bar, the verdict of the jury had established the fact that the defendant had located, used, and operated its race track so as to constitute a nuisance.

There is no assurance that these conditions can or will be corrected by the regulations imposed in the judgment of the trial court. For instance, noise is one of the most objectionable features of a motor vehicle race. Judge Ervin sought to control this only by changing the hours and reducing the number of races. Yet the judgment entered would permit a total of 25 races each seasonmore than double the number found by the jury to be a nuisance in 1968.

*50 Since issues arise on the pleadings when supported by the evidence, we interpret the jury's answer to the issue to mean that the nuisance found was as alleged in the complaint. The plaintiffs alleged and the jury by its verdict found that the noise of the racing vehicles on defendant's track was so loud as to cause the plaintiffs discomfort and annoyance, to cause them to lose sleep at night, and to impair the plaintiffs' use and enjoyment of their homes, and that the lights and dust from the race track, coupled with the noise, caused the plaintiffs' property to depreciate in value and made plaintiffs' homes virtually uninhabitable while the races are in progress.

The jury having found that defendant was operating its race track so as to constitute a nuisance, we hold that plaintiffs were entitled to a judgment restraining its operation in the manner which caused the nuisance. This case is, therefore, remanded to the Superior Court of Mecklenburg County for entry of a judgment on the verdict restraining the nuisance alleged in the complaint.

Error and Remanded.

BOBBITT, C. J., concurs in result.