Opinion
No. 4809.
Argued January 5, 1960.
Decided February 29, 1960.
1. While municipalities are required by statute (RSA 147:23, 23-a supp.) to provide and maintain public dumping facilities, they must do so "in such manner as not to create a nuisance" (RSA 147:26 supp.) and an action may be maintained to enjoin a municipality from operating a "burning dump" in such a manner as to cause irreparable injury to property owners in the area.
2. A municipality in the use of its land as a public dump is subject to the duty imposed upon private landowners to make reasonable use of the land in a manner which will not deprive other landowners in the area of the reasonable enjoyment of their property to a substantial extent, considering all the circumstances.
3. The question of whether the operation of a burning dump by a municipality constituted a nuisance was one of fact; and the determination by the Trial Court that such operation was a substantial nuisance and unreasonable as to adjacent landowners and subjected them to substantial annoyance from smoke and smell and has resulted in depreciation in the value of their properties, and that a continuation thereof would render enjoyment of their properties uncomfortable and inconvenient and produce tangible and appreciable injury thereto was warranted by the evidence.
4. Expert testimony as to the depreciated market value of the plaintiffs' properties resulting from the operation of a burning dump by the municipality based in part on facts established through other witnesses and supplied by hypothetical questions to the expert and partly by personal observation was properly admitted in the Trial Court's discretion.
5. The fact that the expert's estimate of depreciated values was in percentage ranges did not affect the admissibility of his testimony where it could be found that the varying percentages were dependent upon factors of location of the properties in relation to the dump and the smoke, debris and odors carried by the prevailing winds.
6. A decree which enjoins a municipality from operating a public burning dump in a particular location in such a man, net as to permit the escape of smoke, odors and debris to the plaintiffs' properties but does not purport to prohibit the maintenance of a burning dump where it will not affect the plaintiffs' properties or to otherwise direct the operation of the present one in any particular manner does not invade the discretionary powers of the municipality so as to violate constitutional provisions relating to separation of powers.
BILLS IN EQUITY, by nine landowners against the city of Keene, seeking to enjoin the city from conducting an open burning dump in the northwest section of the city, as an unreasonable and unwarranted use of the premises, constituting a nuisance and threatening the plaintiffs with irreparable injury. Trial by the Court (Griffith, J.) with a view. The Court made findings and rulings, and entered a decree permanently enjoining the defendant "from operating a burning dump in the manner in which it is now operated, which permits the escape of smoke, noxious odors and debris to the property of the petitioners," the decree to take effect not later than six months from date.
The defendant moved to set the decree aside and for a new trial, upon numerous grounds, including the granting of certain requests for findings and rulings made by the plaintiffs, and the denial of certain of the defendant's requests.
The defendant's exceptions to the denial of its motions to dismiss made in advance of trial and denied by Grant, J., to certain rulings made in the course of the hearing on the merits, and to denial of its motions to set aside the decree and for new trials, were reserved and transferred by Griffith, J.
The facts relating to the dump were found by the Trial Court as follows: "The area which was acquired by the city and opened as an open burning dump in June of 1958 is located some six miles from the center of the city, adjoining the Surry town line in the west part of Keene, some distance off Route 12, a state highway leading from Keene in the direction of Bellows Falls. This dumping area is presently leased with an option to purchase by the city. It is reached by means of a road known as the Old Summit Road. The dump is located in a wooded area, the actual dump being a deep ravine or gulf, with a small brook flowing through the dumping area and leading toward a railroad embankment and tracks, some three hundred yards from the Summit Road and the face of the present dump.
"Firebreaks have been provided, and a waterhole. A house or shack with a telephone for the attendant is provided at the site, together with barrels of water. The area is enclosed by a gate and fence. The gate is open during the period that an attendant is present. An attendant is present from seven to four-thirty on week days, and two attendants are present on Saturday from eight to four-thirty and on Sunday from eight until noon. Burning is conducted under the supervision of the attendant constantly during the period that an attendant is present, and such fire as remains when the attendant leaves for the night is left unattended until the attendant returns the next morning.
"The usual trash of a city is dumped here, including cans, papers, brush, leaves and trees."
The Court further found that the plaintiffs "have been subjected . . . to substantial annoyance from the smoke and smell from the dump," and that a majority of them have had "deposited upon their property substantial amounts of debris and ash from the dump"; that there is "no fire hazard that would form a basis for equitable relief"; that the "burning dump is a substantial nuisance to the petitioners, has resulted in some depreciation in the value of their properties," and "as it is now operated, will produce a tangible and appreciable injury to [the plaintiffs'] properties . . . and will render their enjoyment of their premises specially uncomfortable and inconvenient."
In response to requests by the plaintiffs, the Court further found and ruled that the test to be applied is the "reasonableness or unreasonableness [of the acts of the city] in relation to neighboring properties, under all the circumstances"; that the continued operation of the dump "will be unreasonable as to the plaintiffs"; and that in determining the reasonableness of the city's acts in operating a burning dump "the need of the city . . . for a dump," and the cost of operating some other type of dump, are circumstances "to be weighed against the injury to, or interference with the rights of, the owners of neighboring properties."
Other facts are stated in the opinion.
Goodnow, Arwe Ayer (Mr. Goodnow orally), for the plaintiffs.
Ernest L. Bell III, city solicitor, (by brief and orally), for the defendant.
By statute towns and cities are required to provide and maintain public dumping facilities, unless exempted from doing so by order of the State Board of Health. Laws 1955, c. 275, ss. 2, 3 (RSA 147:23, 23-a (supp.)). The defendant argues that its motion to dismiss, made in advance of trial, was erroneously denied because the court is without authority to enjoin it from performing its legal duties. Clough v. Verrette, 79 N.H. 356; Rhyne, Municipal Law 797. The plaintiffs' bills however did not seek to enjoin the city from operating a dump, but from operating a "burning dump" on the premises in question. Since the statute specifically provides that the disposition of waste shall be "in such a manner as not to create a nuisance" (RSA 147:26 (supp.)) and the plaintiffs alleged irreparable injury, the defendant's motion to dismiss was properly denied. See Webber v. Gage, 39 N.H. 182.
As proprietor of the dump and of the land upon which it was situated, the defendant was under the duty imposed upon any owner to use the land in a reasonable way under all the circumstances (Horan v. Byrnes, 72 N.H. 93, 100; Lane v. Concord, 70 N.H. 485; Ladd v. Brick Company, 68 N.H. 185) and in a manner which would not "deprive the plaintiffs of the reasonable enjoyment of their property to a substantial extent, considering all the circumstances of the situation." Page v. Brooks, 79 N.H. 70, 73. Even though the defendant was exercising a public right in performance of a public duty imposed upon it, if its use was unreasonable as against adjoining owners, the plaintiffs may have relief both in equity and at law. O'Brien v. Derry, 73 N.H. 198, 204. "Towns like individuals . . . are bound to so use their own as not to injure the property of others." Id. See also, Elliott v. Mason, 76 N.H. 229; Leary v. Manchester, 90 N.H. 256; anno. 52 A.L.R. (2d) 1134, 1140.
Whether the use made constituted a nuisance was a question of fact to be determined by the Trial Court. Page v. Brooks, supra; True v. McAlpine, 81 N.H. 314.
The Court found that continued operation of the dump will be unreasonable as to the plaintiffs, that it has subjected them to substantial annoyance from smoke and smell, is a substantial nuisance, has resulted in some depreciation in the value of their properties, and if continued would render their enjoyment especially uncomfortable and inconvenient, and produce a tangible and appreciable injury to their property. These findings the defendant maintains are not warranted by the evidence.
An expert witness called by the plaintiffs testified that their respective properties were depreciated in value, because of the dump, in percentages ranging from twenty to fifty per cent of their market values. The defendant argues that its motion to strike the witness' testimony was erroneously denied, because the witness lacked personal knowledge of the extent to which the properties were affected by the alleged nuisance and his testimony was inconsistent, incredible, and based upon hearsay. Although the Trial Court did not accept the witness' estimates of the amount of depreciation, his testimony was properly received in the Court's discretion. Edgcomb Steel Co. v. State, 100 N.H. 480, 492. See Fitzpatrick v. Company, 101 N.H. 35, 42-43. Much of his testimony was in response to hypothetical questions which supplied facts established through other witnesses. The variance in percentages of depreciation could findably be accounted for by factors such as relative location, and the course taken by smoke from the dump, which the witness himself observed.
The findings relative to the interference with the plaintiffs' enjoyment of their properties and to "substantial annoyance from the smoke and smell" were warranted by the testimony of the parties themselves concerning the charred and unburned paper and debris blown upon their property, and the frequency of smoke and odors at times "almost sickening to smell," which variously caused "burning" sensation of the eyes, or could be "felt . . . in our throats," and required that bedroom windows be closed and picnics be held indoors. If the findings were not couched in the precise language of Page v. Brooks, supra (but see Lane v. Concord, supra, 486), they were nevertheless equivalent to a finding of deprivation of "reasonable enjoyment . . . to a substantial extent." Page v. Brooks, supra, 73. The findings warranted in turn the further finding that "some depreciation" had resulted, and the ultimate conclusion that the city's use was unreasonable, and such as to produce tangible and appreciable injury. Lane v. Concord, supra.
Other findings and rulings plainly indicate that in reaching its conclusion, the Court considered the circumstances of the need of the city for a dump, and the probable expense of operating one by a method which would not permit the escape of smoke, odors, and debris to the adjoining properties.
The injunction does not purport to require the city to establish another dump, or to operate this or any other dump in any particular manner, except that a "burning dump" may not be operated so as to permit the escape of smoke, odors or debris to the plaintiffs' properties. The decree does not prohibit a burning dump at some other location in Keene or elsewhere where it will not affect the plaintiffs' properties. Hence we see no basis for the defendant's further argument that the decree, by directing what the city shall do, invades its discretionary powers or violates constitutional provisions relating to the separation of powers.
The issue of reasonable use is one of fact which in this case has been decided adversely to the defendant upon evidence sufficient to warrant the decision made. Neither the order of the Trial Court nor the opinion of this court stands for the proposition that a burning dump is a nuisance per se or that it necessarily violates the prohibition of RSA 147:26, supra, against a nuisance.
Exceptions overruled.
All concurred.