Bedminster Township v. Vargo Dragway, Inc.

253 A.2d 659, 434 Pa. 100, 41 A.L.R. 3d 1266, 1969 Pa. LEXIS 412
CourtSupreme Court of Pennsylvania
DecidedApril 23, 1969
DocketAppeal, 17
StatusPublished
Cited by18 cases

This text of 253 A.2d 659 (Bedminster Township v. Vargo Dragway, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bedminster Township v. Vargo Dragway, Inc., 253 A.2d 659, 434 Pa. 100, 41 A.L.R. 3d 1266, 1969 Pa. LEXIS 412 (Pa. 1969).

Opinions

Opinion by

Mr. Justice Jones,

This appeal lies from a decree of the Court of Common Pleas of Bucks County permanently enjoining the operation of a drag strip racing track on the ground that the operation of . the track constituted a nuisance in fact.

In March, 1958, Jacob Vargo and Mary Vargo, his wife (Vargos), owned a twenty-seven acre tract of land located in Bedminster Township, Bucks County. At that time the Vargos leased the premises to the Lehigh Valley Timing Association (Timing Association).1 Under the lease agreement the Vargos were to construct a drag strip racing track on the premises and the Timing Association was to operate the track on a profit-sharing plan.2

[103]*103The drag strip racing track consists of a 60 foot wide black top level surface approximately 3,200 feet in length, the starting point of which is approximately 100 feet from Elephant Road, a public highway. Also located on the premises nearby áre a large parking area owned by the Vargos, a pit area near the starting line, a refreshment stand and a grandstand with ground amplifiers for the playing of music and the announcement of the races and the speeds. The operation of the drag strip began in the Spring of 1960 and continued, with the exception of rainy days, every Sunday from April to November.3

On the average Sunday approximately 130 to 140 cars compete in timed races of speed and acceleration with two cars competing at a time. Of these cars, 75% are stock cars equipped with mufflers; some of the remaining cars have no mufflers and some have modified or semi-modified mufflers. Some of the cars are “dragsters,” i.e., custom-made for racing, some of which burn methyl alcohol for fuel. Speeds up to 196 miles per hour have been recorded, and some “dragsters” use parachutes to aid in stopping at the end of the track.

The track itself operates for racing only on Sundays beginning about 9 :00 a.m. and continuing in operation until 5:00 or 5:30 p.m. with a loud-speaker operating [104]*104continually from about 10:30 a.m. until tbe races end. Practice sessions take place on Saturdays and prior to the start of tbe races on Sundays. Each race takes about five minutes, and, on tbe average Sunday, there are usually a minimum of 65 races. Attendance at tbe races varied from a high of 2547 persons to a low of 625 persons.

Tbe neighborhood in tbe vicinity of tbe race track is primarily residential and farming in character with about 62 bouses within a one-mile radius of tbe track. Within tbe same radius are located a small experimental laboratory, a hotel, a general store, a milk farm and a junk yard. . Many of tbe residences in tbe general area are used for vacation and weekend purposes only.

In 1961 tbe Vargos conveyed tbe tract to Vargo Dragway, Inc., a family corporation in which tbe Var-gos and a daughter owned all tbe stock. At tbe time of tbe institution of tbe present proceeding the lease between tbe Vargos and tbe Timing Association no longer was in effect and tbe track was operated by Vargo Dragway, Inc., with tbe assistance of Timing Association personnel hired on a per diem basis.

On March 22, 1963, Bedminster Township instituted equity proceedings in tbe Court of Common Pleas of Bucks County against Vargo Dragway, Inc., tbe Timing Association and tbe Vargos, alleging conduct on their part in tbe operation of tbe track which constituted a nuisance in fact. Upon answer filed and after hearing, the Court entered a decree nisi enjoining and restraining the defendants from operating' the drag strip racing track. Exceptions to this decree nisi were filed and the court en banc of Bucks County dismissed the exceptions and entered a final decree.

Basically, we must determine whether tbe evidence of record as to tbe manner in which this track was [105]*105operated justified tlie conclusion of the court below that the operation of the track constituted a nuisance in fact. In arriving at this determination, we bear in mind that the findings of fact of the chancellor, approved by the court en banc, are binding upon this Court if such findings have sufficient evidentiary support in the record and if the court below has not capriciously disbelieved the evidence, committed an error of law or abused its discretion. Shapiro v. Shapiro, 424 Pa. 120, 127, 224 A. 2d 164 (1966).

In Ebur v. Alloy Metal Wire Co., 304 Pa. 177, 182, 183, 155 A. 280 (1931), we said: “It has been said that a ‘fair test as to whether a business lawful in itself, or a particular use of property, constitutes a nuisance, is the reasonableness or unreasonableness of conducting the business or making the use of the property complained of in the particular locality and in the manner and under the circumstances of the case’: 46 C. J. 655. It has also been said: ‘Whether the use is reasonable generally depends upon many and varied facts. No hard and fast rule controls the subject. A use that would be reasonable under one set of facts might be unreasonable under another. What is reasonable is sometimes a question of law, and at other times, a question of fact. No one particular fact is conclusive, but the inference is to be drawn from all the facts proved whether the controlling fact exists that the use is unreasonable’: 46 C. J. 656.” See also: Reid v. Brodsky, 397 Pa. 463, 469, 470, 156 A. 2d 334 (1959); Hannum v. Gruber, 346 Pa. 417, 31 A. 2d 99 (1943).

Although not entitled to absolute quiet in the enjoyment of property, every person has the right to require a degree of quietude which is consistent with the standard of comfort prevailing in the locality wherein he lives. See: Firth v. Scherzberg, 366 Pa. 443, 447, 77 A. 2d 443 (1951); Crew v. Gallagher, 358 Pa. 541, [106]*106548; 58 A. 2d 179 (1948); Collins v. Wayne Iron Works, 227 Pa. 326, 331, 76 A. 24 (1910).

The court below made, inter alia, the following findings of fact: “23. The noise made by the revving up. of the vehicles and during the time tests them-, selves is ‘somewhat analogous to an operating chain saw’,..almost-‘jet-like explosions’, a ‘complete shatter-ing npise’, but no matter how described has the effect, of. limiting; the- enjoyment of persons; not only living in the immediate community, but at least a mile, therefrom. ,24. -The resonance and intensity of the .sound is such that it can be heard at a distance-of three miles from the drag strip. 25: At homes approximately a mile from the .drag strip the noise is such as to make it impossible to carry on a conversation in a normal tone of voice, to prevent the enjoyment.of out-of-doors activities, to listen to television programs without turning on the sound at high volume, to cause windows, to rattle, and is disturbing to cattle. 26. In the. immediate area of .the race track the residents are. required to. close their windows in order that reasonable quiet, may prevail in .their homes. 27. At the Presbyterian Church of Deep Run, located on Elephant Road approximately two. miles from the track, the noise of the cars-going to . the- track disturbs church services. 28. During that time on Sundays when the track is in operation, -there is a great increase in traffic on the roads and highways approaching the track [as amended].”

Our examination and reading of this record reveal, that these findings of fact are fully supported by the testimony of record.

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Bedminster Township v. Vargo Dragway, Inc.
253 A.2d 659 (Supreme Court of Pennsylvania, 1969)

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Bluebook (online)
253 A.2d 659, 434 Pa. 100, 41 A.L.R. 3d 1266, 1969 Pa. LEXIS 412, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bedminster-township-v-vargo-dragway-inc-pa-1969.