Elliott v. Muehlbach

620 S.E.2d 266, 173 N.C. App. 709, 2005 N.C. App. LEXIS 2226
CourtCourt of Appeals of North Carolina
DecidedOctober 18, 2005
DocketNo. COA04-1128.
StatusPublished
Cited by6 cases

This text of 620 S.E.2d 266 (Elliott v. Muehlbach) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Elliott v. Muehlbach, 620 S.E.2d 266, 173 N.C. App. 709, 2005 N.C. App. LEXIS 2226 (N.C. Ct. App. 2005).

Opinion

GEER, Judge.

Plaintiffs Mark and Betsey Elliott, Kim and Lewis Caraganis, Wayne Thorn and Robin Whitten, Joey Howell and Lisa Neal, and Pat Wesley and David Green, brought suit against defendants James and Mary Muehlbach, alleging that defendants' construction and use of a racetrack for all terrain vehicles ("ATVs") on defendants' property constituted a nuisance. Defendants appeal from the trial court's order granting a permanent injunction prohibiting defendants' operation of the racetrack. Because we hold that the trial court's order failed to make sufficient findings of fact to support its conclusion that the track was a nuisance per accidens, we reverse and remand for additional findings of fact.

Facts

The trial court made the following findings of fact that have not been challenged on appeal. The parties to this action all live on multiple-acre tracts of land in an unzoned rural area in Chatham County. As of 2001, each of the plaintiffs had lived in their homes for at least nine years. They were attracted to the area because of the relative peace and quiet, seclusion, and isolation.

Defendants' son rode ATVs in the area for a number of years and, in approximately 1998, began competing in ATV races. At the time of the trial, he had become a professional ATV racer. In late 2001, defendants constructed a dirt racetrack on their property. The track, which took up approximately three cleared acres of defendants' property, had both an outer loop and an inner loop, with the outer loop measuring approximately 1/5 to 1/4 of a mile in distance. In November 2001, defendants also obtained a building permit to construct a 16 by 20 foot building with restrooms next to the track. The permit was for a business with an "open air arena" for up to 50 spectators, with parking for up to 50 vehicles. Only the foundation for the building had been built at the time of trial and defendants indicated that they had abandoned the building project. The permits, however, remain in effect.

Although the track had not been fully completed, defendants began to run ATVs on the track in early December 2001. Plaintiffs filed suit on 5 November 2002, alleging claims for nuisance and trespass and seeking an injunction against use of the racetrack. The trial court issued a preliminary injunction on 26 January 2003, pending resolution of the lawsuit. On 22 December 2003, following a bench trial, the trial court entered a final judgment concluding "that the Defendant[s'] use of the Track and operation of ATVs and testing of ATVs... on the Track constitutes a private nuisance per accidens in fact." The court further concluded "that the only reasonable and sure means for eliminating the nuisance caused by use of the Track *269is to ban its use entirely by any ATV vehicle, whether 2 wheel, 3 wheel, or 4 wheel." The court, therefore, entered a permanent injunction barring defendants from operating or allowing others to operate any ATV on the track or from constructing a new track or similar facility on their property. Defendants have appealed from the trial court's decision.

Discussion

"`It is well settled in this jurisdiction that when the trial court sits without a jury, the standard of review on appeal is whether there was competent evidence to support the trial court's findings of fact and whether its conclusions of law were proper in light of such facts.'" Keel v. Private Bus., Inc., 163 N.C.App. 703, 707, 594 S.E.2d 796, 799 (2004) (quoting Shear v. Stevens Bldg. Co., 107 N.C.App. 154, 160, 418 S.E.2d 841, 845 (1992)). We reject defendants' suggestion that we apply a different standard of review that would permit us to substitute our own view of the facts.

Private nuisances are either nuisances per se or nuisances per accidens:

A nuisance per se or at law is an act, occupation, or structure which is a nuisance at all times and under any circumstances, regardless of location or surroundings. Nuisances per accidens or in fact are those which become nuisances by reason of their location, or by reason of the manner in which they are constructed, maintained, or operated.

Morgan v. High Penn Oil Co., 238 N.C. 185, 191, 77 S.E.2d 682, 687 (1953) (internal citations omitted). "A person who intentionally creates or maintains a private nuisance is liable for the resulting injury to others regardless of the degree of care or skill exercised by him to avoid such injury." Id. at 194, 77 S.E.2d at 689.

In this case, plaintiffs contended and the trial court concluded that defendants' ATV track was a private nuisance per accidens. See Hooks v. Int'l Speedways, Inc., 263 N.C. 686, 690, 140 S.E.2d 387, 390 (1965) ("A race track is not a nuisance per se. But its operation may, under certain circumstances, be a nuisance per accidens, i.e., a nuisance in fact."). In Watts v. Pama Mfg. Co., 256 N.C. 611, 618, 124 S.E.2d 809, 814 (1962), the Supreme Court held that in order to establish a prima facie case of nuisance per accidens, a plaintiff must prove: (1) that the defendant's use of its property, under the circumstances, unreasonably invaded or interfered with the plaintiff's use and enjoyment of the plaintiff's property; and (2) because of the unreasonable invasion or interference, the plaintiff suffered substantial injury. See also Whiteside Estates, Inc. v. Highlands Cove, L.L.C., 146 N.C.App. 449, 456, 553 S.E.2d 431

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Cite This Page — Counsel Stack

Bluebook (online)
620 S.E.2d 266, 173 N.C. App. 709, 2005 N.C. App. LEXIS 2226, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elliott-v-muehlbach-ncctapp-2005.