Allison v. Smith

695 P.2d 791, 1984 Colo. App. LEXIS 1331
CourtColorado Court of Appeals
DecidedDecember 20, 1984
Docket82CA1484
StatusPublished
Cited by15 cases

This text of 695 P.2d 791 (Allison v. Smith) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Allison v. Smith, 695 P.2d 791, 1984 Colo. App. LEXIS 1331 (Colo. Ct. App. 1984).

Opinion

METZGER, Judge.

In this nuisance action between the owners of two adjoining properties, defendants, Calvin, Abigail, Frank, Mark J. Ricken Smith, and Nancy Eaton Rutan (the Smiths), appeal the trial court’s judgment awarding plaintiffs, Ronald and Bonnie Allison and John and Barbara Dozzo (the Allisons), a permanent injunction and $5,000 in damages. We affirm.

The Allisons are among several family members who, since acquiring it from their father in 1974, have jointly owned a small weekend cabin on a .37-acre wooded mountain lot in Gilpin County. The Smiths own a larger tract, consisting of four lots, which adjoins the Allisons’ property on two sides.

The neighborhood consists mostly of small recreational cabins, and has been zoned for residential use since 1975. The Smiths have operated a variety of businesses on their property since the early 1960’s including a well-drilling service, new and used car dealerships, and several construction businesses. The Smiths customarily stored and discarded limited quantities of equipment from these businesses on three lots which adjoined one side of the Allisons’ property. The parties agree that the Smiths’ activities, prior to the 1975 enactment of Gilpin county zoning ordinances, make them an authorized nonconforming user under those ordinances.

After 1974, however, the Smiths expanded their business and a dramatic increase in the accumulation of equipment on their land resulted. By the late 1970’s all four of the Smiths’ lots, especially the one directly across from the Allisons’ front porch, were filled with many items including: inoperable automobiles, large rigs, a bulldozer, tons of scrap metal, pipe, new and used construction materials, drums of petrochemicals, large amounts of everyday litter and rubbish, and other “obnoxious debris.” The Smiths had also installed several above-ground 2,000-gallon oil and fuel storage tanks directly uphill from the Alli-sons’ cabin. Additionally, the Smiths poured oil on the ground to “keep the dust down.” This oil, carried by rain and snow melt from the Smiths’ land onto the Alli-sons’ property, killed much vegetation on their land, entered their water well, making the water unusable, and created a persistent odor.

As a result of these new and unpleasant conditions the Allisons, who had used the cabin frequently on weekends and during vacations every year since 1977, ceased using it entirely. On several occasions they allowed various friends to use the cabin, but none of the friends, after visiting once, ever asked to use it again.

The Allisons sued for damages and in-junctive relief, claiming that, since 1974, the Smiths’ property had become a nuisance and had substantially interfered with the use and enjoyment of their property. The trial court found that the condition of the Smiths’ property constituted a private nuisance and awarded the Allisons $1,000 for each year of non-use of their property, for a total of $5,000. The court ordered the Smiths to restore their property to its 1974 state, requiring them to remove substantial quantities of rubbish and equipment. The Smiths were also ordered to return the fourth lot, which was immediately adjacent to the Allisons’ front porch, to its prior vacant condition.

I.

The Smiths contend the trial court erred as a matter of law in its finding of nuisance since there was no physical invasion of the Allisons’ property. We disagree.

Private nuisance is a non-trespas-sory invasion of another’s interest in the *794 private use and enjoyment of his land. To demonstrate its existence a plaintiff must show that the defendant unreasonably and substantially interfered with the use and enjoyment of his property. See Lowder v. Tina Marie Homes Inc., 43 Colo.App. 225, 601 P.2d 657 (1979); Miller v. Carnation Co., 33 Colo.App. 62, 516 P.2d 661 (1973). The defendant’s liability rests on a duty he owes as an occupier of land to prevent conditions on his land, particularly those he himself has created, from injuring others. See Moore v. Standard Paint & Glass Co., 145 Colo. 151, 358 P.2d 33 (1960); see also W. Prosser, Torts § 57 (4th ed. 1971).

Even if a particular use complies with zoning regulations, it may still constitute a private nuisance if there is a substantial interference with a plaintiffs use and enjoyment of his land. Hobbs v. Smith, 177 Colo. 299, 493 P.2d 1352 (1972). See also Northwest Water Corp. v. Pennetta, 29 Colo.App. 1, 479 P.2d 398 (1970).

The existence and nature of Smith’s activities in accumulating junk and obnoxious debris on property bordering the Allisons’ was virtually undisputed, as was the effect of this accumulation on the Allisons’ enjoyment of their property. Thus, the trial court did not err in concluding that the Smiths unreasonably and substantially interfered with the use and enjoyment of the Allisons’ property. See Lowder v. Tina Marie Homes, supra; Miller v. Carnation Co., supra.

We note, however, that not all challenged activities found to be unsightly eyesores, as here, constitute an actionable private nuisance. To constitute a nuisance, it is not enough that a thing such as accumulated debris and rubbish be unsightly or that it offend one’s aesthetic sense. Mathewson v. Primeau, 64 Wash.2d 929, 395 P.2d 183 (1964). The unreasonable and substantial interference tests enunciated in Lowder and Miller, supra, necessarily include a consideration whether the questioned activity is reasonable under all the surrounding circumstances. See Murray v. Young, 97 A.D.2d 958, 468 N.Y.S.2d 759 (1983). Thus, legitimate but unsightly activity such as the accumulation of debris on land or the operation of a junkyard or auto salvage business may become a private nuisance if it is unreasonably operated so as to be unduly offensive to its neighbors, particularly when it is located in a residential district. See Mahoney v. Walter, 157 W.Va. 882, 205 S.E.2d 692 (1974); Wellborn v. Page, 247 S.C. 554, 148 S.E.2d 375 (1966); Parkersburg Builders Material Co. v. Barrack, 118 W.Va. 608, 192 S.E. 291 (1937).

This court employed a similarly inclusive approach in Northwest Water v. Pennetta, supra, where a homeowner sued in nuisance when an unsightly water tank was erected next door to his home. There we held that, in deciding whether a private nuisance exists, a factual determination must be made:

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695 P.2d 791, 1984 Colo. App. LEXIS 1331, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allison-v-smith-coloctapp-1984.