Splitt, Ronald

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North Dakota Law Review Volume 33 Number 2 Article 11 1957 Nuisance - Injunction - Enjoining Operation of Used Car Lot Ronald Splitt Follow this and additional works at: https://commons.und.edu/ndlr  Part of the Law Commons Recommended Citation Splitt, Ronald (1957) "Nuisance - Injunction - Enjoining Operation of Used Car Lot," North Dakota Law Review: Vol. 33 : No. 2 , Article 11. Available at: https://commons.und.edu/ndlr/vol33/iss2/11 This Case Comment is brought to you for free and open access by the School of Law at UND Scholarly Commons. It has been accepted for inclusion in North Dakota Law Review by an authorized editor of UND Scholarly Commons. For more information, please contact und.commons@library.und.edu. 244 NORTH DAKOTA LAW REVIEW [VOL. 33quent danger." The reasoning seems to be based on tMe fear of establishingan unjustified means for evasion of liability.12Several courts have allowed recovery on the theory that the beneficiaryderives his rights through contract father than from the estate of the insured.13Courts also say that when the insured purchases his policy, the beneficiary ob-tains a vested interest which should not later be divested or jeopardized by anywrongful act of the insured, not excluded from the policy, for which the bene-ficiary was not responsible, 14 unless it is positively shown that the policy wasobtained in contemplation of the crime. 15It seems that the contractual right of the beneficiary presents the best argu-ment in favor of recovery. The insured usually does not purchase the policyior his own benefit, but rather for that of a third party; and since ample con-sideration is paid for the indemnity, the third party should not be deprived ofhis rights under the contract merely because one of the original parties hasdied or been injured as the result of an unlawful act. The court in the instantcase apparently avoided the necessity of adopting one of the theories set outabove by reasoning that the accident occured before the actual commission ofthe felony.JOHN M. RILEY.NUISANCE - INJUNCTION - ENJOINING OPERATION OF USED CAR LOT.-Plain-tiffs, home owners in a zoned residential district were granted a perpetual in-junction prohibiting the defendants operation of a "used car lot" which waslocated on an adjacent unincorporated area and separated from the zoned dis-trict by a federal highway. The plaintiffs alleged that the defendant's businessdiminished the value of their property, created excessive noise and illumination,and was unsightly. In affirming the decree of the lower court the SupremeCourt of Appeals held that the evidence was sufficient to justify a finding thatthe used car lot constituted a nuisance in fact. Martin v. Williams, 93 S.E.2d835 (W. Va. 1956).A person may use his property as he sees fit so long as he does not -invadethe rights of others, based upon the ordinary standards of life and the concep-tions of reasonable men.' When the use of property is unreasonable, unlawful,or when it unwarrantably impairs the rights of another it becomes a nuisance, 2depending upon the particular facts of each case. A common conception of anuisance is that it is anything which results in the disturbance or annoyanceof one in lawful use, possession, or enjoyment of his property or which rendersits ordinary use or occupation physically uncomfortable. 3 Nuisances have been11. Domieo v. Metropolitan Life Ins. Co., 191 Minn. 215, 253 N.W. 538 (1934);Hcme State Life Ins. Co. v. Russell, 175 Okla. 492, 53 P.2d 562 (1936).12. Zurich Gen. Ace. & Liab. Ins. Co. v. Flukinger, 33 F.2d 853 (4th Cir. 1929);Sanders v. Metropolitan Life Ins. Co., 104 Utah 75, 138 P.2d 239, 243 (1943) (dictum).13. Home State Life Ins. Co. v. Russell, 175 Okla. 492 53 P.2d 562 (1936); Collinsv. Metropolitan Life Ins. Co., 232 111. 37, 83 N.E. 542, 544 (1907) (dictum).14. Mutual Life Ins. Co. v. Guller, 68 Ind. App. 544, 119 N.E. 173 (1918); Paynev. Louisiana Industrial -Life Ins. Co., 33 So.2d 444 (La. 1948).15. Home State Life Ins. Co. v. Russell, 175 Okla. 492, 53 P.2d 562 (1936).1. Wilson v. Evans Hotel Co., 188 Ga. 498, 4 S.E.2d 155 (1939).2. Kramer v. Pittsburgh Coal Co., 341 Pa. 379, 19 A.2d 362 (1941); accord, Citycf Temple v. Mitchell, 180 S.W.2d 959, 962 (Tex. Civ. App. 1944) (the invasion must besubstantial).3. Jones v. Trawick, 75 So.2d 785 (Fla. 1954).1957] RECENT CASES 245classified as nuisance per se,4 in fact, 5 and are also classified as being publicor private.7No one has a legal right to absolute quiet, but can only insist upon quietnessto a degree which is consistent with the prevailing standard of the surround-ing locality.8 It is to be noted that recurring noise may constitute a nuisanceat night, but not during the day.9 Thus courts have enjoined the manufacturecf culverts,10 the loading of milk wagons and the running of an ice crusherduring the customary sleeping hours." 1 A court will not abate a nuisance on theground of noise alone unless it causes a material and physical discomfort to aperson of ordinary sensibilities.'12 This same reasoning is applicable to objec-tions regarding excessive illumination,' 3 but mere aesthetic considerationsalone will not ordinarly give rise to an actionable nuisance. 1 4 The lawful useof one's property which causes adjoining property to depreciate in value is notordinarily grounds for an injunction.'3Generally courts of equity are reluctant to bar the operation of a lawfulbusiness and will look for a remedy other than an injunction. 16 However,such lawful businesses as a garage17 and an ice plant located in a residentialdistrict were held to constitute a nuisance under certain conditions which areenjoinable.18It seems apparent that the granting of a perpetual injunction in the instantc.;se is not in harmony with previous West Virginia decisions which have held4. Simpson v. DuPont Powder Co., 143 Ga. 465, 85 S.E. 344 (1915) ("nuisanceper se is an act, occupation, or structure which is a nuisance at all times and under anycircumstances regardless of locality or surroundings".); cf. Beckwith v. Town of Stratford,129 Conn. 506, 29 A.2d 775, 776 (1943) (Contributory negligence is no defense).5. New Orleans v. Lenfant, 126 La. 455, 52 So. 575 (1910) ("Nuisances in factare those which become nuisances by reason of circumstances".); High Penn Oil Co., 238N. C. 185, 77 S.E.2d 682, 687 (1953), (dictum), ("... a nuisance by reason of localityor by reason of the way they are constructed, maintained, or operated".).6. Dean v. State, 151 Ga. 371, 106 S.E. 792 (1921) ("A public nuisance is onewhich damages all persons who come within the sphere of its operation though it may varyiu its effect on individuals".); Commonwealth v. South Covington and D. St. By., 181Ky. 459, 205 S.W. 581 (1918).7. Black, Law Dictionary 1215 (4th ed. 1951) (A private nuisance is any wrongfulact which destroys or deteriorates the property of a few persons or an individual or inter-feres with their lawful use or enjoyment thereof). But see Young v. Brown, 212 S. C. 156,46 S.E.2d 673, 679 (1948) (There is a class of nuisances which may properly be de-nominated mixed nuisances in that while they injure the public at large they cause speciali.jury to private individuals).8. Collins v. Wayne Iron Works, 227 Pa. 326, 76 Atl. 24 (1910); accord, Nannumv. Gruber, 346 Pa. 417, 31 A.2d 99 (1943).9. 82 U. Pa. L. Rev. 572 (1934).10. Wheat Culvert Co. v. Jenkins, 246 Ky. 319, 55 S.W.2d 4 (1932).11. Roukovina v. Island Farm Creamery Co., 160 Minn. 335, 200 N.W. 350 (1924)Decree modified in other respects.).12. Schneider v. Fromm Laboratories, 262 Wis. 21, 53 N.W.2d 737, 740 (1952)(dictum).13. See Amphitheatres Inc. v. Portland Meadows, 184 Ore. 336, 198 P.2d 847 (1948);See also Village of Wadena v. Folkestad, 194 Minn. 146, 260 N.W. 221 (1935) (con-cerning both light and noise.)14. Alabama Power Co. v. Stringfellow, 228 Ala. 422, 153 So. 629 (1934) (claimof unsightliness is demurrable.); Livingston v. Davis, 243 Iowa 21, 50 N.W.2d 592(]951) (dictum).15. Swetland v. Curtiss Airports Corp., 41 F.2d 929, 933 (8th Cir. 1930) (dictum);Dawson v. Laufersweiler, 241 Iowa 850, 43 N.W.2d 726, 732 (1950) (dictum). But seeConway v. Gampel, 235 Mich. 511, 209 N.W. 562 (1926) (Evidence of the depreciationof the value of the property may be considered with respect to the fact of nuisance al-though there may be an adequate relief at law).16. Ensign v. Walls, 323 Mich. 49, 34 N.W.2d 549, 555 (1948) (dictum) (Courtshould regulate future operations to eliminate claimed objections).17. Ballstadt v. Pagel, 202 Wis. 484, 232 N.W. 862 (1930).18. Brickley v. Morgan Util. Co., 173 Ark. 1038, 294 S.W. 38 (1927).NORTH DAKOTA LAW REVIEWthat a lawful business does not constitute a nuisance per se. 19 A business nota nuisance per'se should not be perpetually enjoined from operating, but onlyfiorn operating as a nuisance in fact. If the facts can be altered the business-man should be allowed to change and remove those elements which wouldmake it a nuisance in fact under an interlocutory decree.RONALD SPLITT.REAL PROPERTY - JOINT TENANCY - CONTRACT FOR SALE BY ALL JOINTTENANTS SEVERS JOINT TENANCY.- Husband and wife contracted to sellland which they held in joint tenancy without specifying how the proceedswere to be held. While the agreement was still executory the husband diedintestate, whereupon his estate claimed one-half the proceeds due on the con-tract. In an action in equity seeking a declaration of rights as to the proceedsthe Supreme Court affirmed the decision of the lower court and held that acontract for deed executed by both joint tenants who had not specified howthe proceeds were to be held, effected a severance of the joint tenancy. Th.doctrine of equitable conversion applied to convert the estate into personaltywhich was held by the husband and wife as tenants in common with no rightof survivorship. In Re Baker's Estate, 78 N.W.2d 863 (Iowa 1956).In Iowa as in the majority of jurisdictions, joint tenancies are disfavored.,Hence a conveyance to two or more parties, in the absence of expressed intentto create a joint tenancy, results in the creation of a tenancy in common.2 Theexistence of the joint tenancy depends on the presence of the four unities oftime, title, interest, and possession.:, If any of the unities are destroyed, duringthe lifetime of the joint tenants the estate is severed, thus extinguishing theright of survivorship. 4The court in the instant case reasoned that a conveyance by one joint tenantto a third party effects a severance of the joint tenancy. They then concludedthat as a necessary corollary the joint tenancy is severed where both jointtenants enter into a contract to sell all their interest, even though they retainlegal title, 5- although it has been held in another jurisdiction that the execu-tion of a contract for the sale of land by all joint tenants, does not of itselfcffect a severence.GIt is arguable that if equitable conversion is applicable to the situation in theitistant case it does not effect a severance of the joint tenancy, since it does not19. State ex rel. Ammerman v. City of Philippi, 136 W. Va. 120, 65 S.E.2d 713(1951) (tire recapping); Parkersburg Builders Material Co. v. Barrack, 118 W. Va. 608,191 S.E. 368, (1937) (auto wrecking establishment); Chambers v. Cramer, 49 W. Va.395, 38 S.E. 691 (1901) (blacksmith shop); The Central National Bank v. City of Buck-hannon, 118 W. Va. 26, 188 S.E. 661, 662 (1936) (dictum) (service station).1. Switzer v. Pratt, 257 Iowa 788, 23 N.W.2d 837 (1946); Shipley v. Shipley, 324Ill. 560, 155 N.E. 334 (1927); De Forge v. Patrick, 162 Neb. 568, 76 N.W.2d 7.33, 736(1956) (dictum).2. Iowa Code § 557.15 (1950); N. D. Rev. Code § 47-0206 (1943).3. Gau v. Hyland, 230 Minn. 235, 41 N.W.2d 444, 447 (1950) (dictum). But seeConlee v. Conlee, 222 Iowa 561, 269 N.W. 259 (1936) (Wherein Iowa apparently re-pudiates the "unity'test" in favor of an "intent of the parties test.").4. Gau v. Hyland, 230 Minn. 235, 41 N.W.2d 444, 447 (1950) (dictum).5. See In re Sprague's Estate, 44 Iowa 540, 57 N.W.2d 212 (1953) (Which .sapparently distinguishable from the instant case in that there was a will involved and itv'as stipulated that the proceeds were held as tenants in common-here there was no willnor any other provision for the proceeds.).6. Chartier v. Simon, 250 Wis. 642, 27 N.W. 752 (1947). Contra, Buford v. Dahlke,158 Neb. 39, 62 N.W.2d 252 (1954). '[VOL. 33

Nuisance - Injunction - Enjoining Operation of Used Car Lot

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Nuisance - Injunction - Enjoining Operation of Used Car Lot

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