Material Co. v. Barrack , 118 W. Va. 608 ( 1937 )

I agree with the conclusion reached by the majority of the court that the plaintiff in this case has failed to show that the property as to which it seeks injunctive relief is situated in an exclusively residential section of the City of Parkersburg. Inasmuch as the granting of injunctive relief to prohibit or abate a nuisance is, excepting where the nuisance involved is said to be a nuisance per se, dependent upon the neighborhood and surrounding conditions, and inasmuch as the plaintiff in this case has not succeeded in bringing itself within the class of property owners who may maintain this sort of a suit, I am of the belief that that question alone is determinative of this controversy. The plaintiff, not being a property owner in an exclusively residential section, simply cannot maintain this suit. When that fact becomes apparent, the suit must be dismissed regardless of other considerations. I, therefore, think that the discussion contained in the majority opinion with respect to the power of a court of equity to enjoin the continuance of a structure or condition on the ground of unsightliness alone is entirely unnecessary to a decision of the case. With all respect for the opinions of my associates, I think that that discussion, in addition to being unnecessary, proceeds upon lines that are entirely unsound.

To my mind, the major fallacy of the majority opinion lies in the fact that to sustain its position that unsightliness alone may constitute a nuisance, it depends primarily upon those cases which sustain building regulations, zoning ordinances, and the like, as being proper exercises of the police power of the state. There is no dispute about this being the trend of modern decisions, although in this state we are definitely committed to the holding that an ordinance seeking to establish a property line for no other than aesthetic reasons is invalid.Fruth v. Board of Affairs, 75 W. Va. 456, 84 S.E. 105, L.R.A. 1915D, 1186. Although I do not know of any case that has sustained such an exercise of the police power on the ground that aesthetic considerations by themselves justify the exercise of that power, the unmistakable trend is to sustain the exercise of that power in zoning and the like as being promotive of the public health and safety and in furtherance of the general welfare of the community.Metzenbaum on the Law of Zoning, p. 99, Par. D. There is to my mind a clear and most decided difference between direct control by the courts through the process of injunction on the one hand, and the control exercised by the legislative branch through the use of the police power on the other.

With respect to the police power, the Supreme Court of the United States has said: "While the police power of the state cannot be so arbitrarily exercised as to deprive persons of their property without due process of law or deny them equal protection of the law, it is one of the most essential powers of the government and one of the least limitable; in fact, the imperative necessity for its existence precludes any limitation upon it, when not arbitrarily exercised." Hadacheck v.Sebastian, 239 U.S. 394. The proper exercise of the police power has been held to override both the due process clause and the equal protection clause of the Constitution, so great is the extent of that power. It must never be forgotten by the courts, however, that this great power is lodged in the legislative branch of the government, composed of representatives directly elected by the people for the purpose of making laws. Its exercise is not intended for the courts whose business is to apply existing legal principles.

The majority opinion argues that to extend the law of nuisances so that courts of equity by injunctive intervention may prevent the continuance of things that are unsightly or offensive to the aesthetic sensibilities is in keeping with the liberal spirit of modern judicial decisions exemplified by the very recent attitude of the United States Supreme Court. Without pausing to inquire as to the stability of conviction which may or may not underlie that great court's recent trend, I think that the majority opinion in this case argues along lines that are the antithesis of liberalism. There can be no doubt that it is a vast extension of the former powers of the courts to say that a court of equity may enjoin as a nuisance the continuation of a thing because it is unsightly. So far as I have been able by an exhaustive search to discover, no judicial decision in either England or America has ever so held. The case of Village of Euclid v. Ambler Realty Co., 272 U.S. 365, quoted at length in the majority opinion, involves simply the constitutionality of a zoning ordinance. It was, I believe, a case of first impression in the Supreme Court, and is the country's leading authority sustaining comprehensive zoning regulations as proper exercises of the police power. The case has nothing to do with the direct powers of equity courts to abate nuisances. The same thing is true of the case of State exrel. Carter v. Harper, 182 Wis. 148, 196 N.W. 451, 33 A.L.R. 269, also relied upon in the majority opinion. Yeager v.Traylor, 306 Pa. 530, 160 A. 108, is quoted in the majority opinion, but a careful examination of the opinion in that case discloses that the question of unsightliness received merely incidental treatment. There an injunction was sought to prohibit the erection of a commercial garage in a residential area. The relief was asked upon the grounds usually assigned in such matters — that the proximity of a commercial garage with its vapors and odors, its noises and vibrations would damage the surrounding residential properties because of the fact that they would thereby be rendered unfit for the homes of persons of ordinary sensibility. A regulatory decree was entered permitting the construction of the building. In the course of discussing the regulatory decree, after having dealt with the more serious questions of complaint, the opinion alludes to the question of unsightliness in the language quoted in the principal opinion herein. There is nothing in the court's discussion to indicate that the matter was either briefed or argued and there is no citation of authority which justifies even the incidental treatment it received. My own investigation confirms what I believe is apparent from a perusal of the cases used in the principal opinion, that is, that the direct intervention of courts of equity on the ground of unsightliness alone is a theory that rests upon little or no authority. On the other hand, the courts of this country by direct pronouncements, as well as by cases of inescapable analogy, have universally declined to so extend the power of the courts.

The following cases have held directly that mere unsightliness is not a subject for direct injunctive relief:Trulock v. Merte, 72 Iowa 510, 34 N.W. 307 (1887) WoodstockBurial Ground Association v. Hager (1896), 68 Vt. 488,35 A. 431; Flood v. Consumers Company (1903), 105 Ill. App. 559;Whitmore v. Brown (1906), 102 Me. 47, 65 A. 516; Crossman v.City of Galveston, (1923) 112 Tex. 303, 247 S.W. 810; HoustonGas Fuel Co. v. Harlow, (1927) (Tex.Civ.App.) 297 S.W. 570. In not one of these cases is there mentioned an authority or decision to the contrary. See also the note to Acme FertilizerCo. v. State, (34 Ind. App. 346, 72 N.E. 1037) 107 Am. St. Rep. 190, at page 232. See also 28 Mich. Law Review, page 211, reviewing the case of Shepler v. Kansas Milling Co.,128 Kan. 554, 278 P. 757, in which it was shown that immediately across the street and a railroad track from the plaintiff's property, the defendant had erected grain storage tanks sixty feet high which were painted white and reflected the afternoon sun in such manner as to create great annoyance and discomfort to those occupying the plaintiff's premises. An injunction was refused.

It would seem that nothing could be more highly objectionable as far as the impression to be made upon one's vision is concerned than the total shutting off of all view. That amounts to unsightliness in a very literal sense. Yet, the uniform holdings in this country are to the effect that obstructions of view, and even of light and air, will not be enjoined on that account alone. Dallas Land Loan Co. v. Garrett, (Tex.Civ.App.) 276 S.W. 471; Hay v. Weber, 79 Wis. 587, 48 N.W. 859, 24 Am. St. Rep. 737; Harwood v. Tompkins, 24 N.J.L. 425;Honsel v. Conant, 12 Ill. App. 259; Levy v. Samuel, 4 Misc. Rep. 48, 23 N.Y.S. 825.

It seems palpable that in a state where the courts have held the legislative exercise of the police power is unconstitutional if based solely upon aesthetic considerations, the courts should not extend their own power beyond that of the legislature by holding that they have the right to enjoin as a nuisance that which is merely unsightly. Certainly in a mining and industrial state, such as West Virginia, with its building possibilities restricted by a rugged terrain, it is a doctrine that is open to very serious question. The rules that govern the law of nuisances are uncertain enough without engrafting upon them a doctrine as essentially speculative as this dictum. With that doctrine as a part of our equity jurisprudence, our courts are likely to be called upon in large degree to embark into the business of city planning, with little to guide them excepting the infinite variations of taste and preference.

Neither do I believe that the doctrine enunciated in the majority opinion is a step in the direction of liberalism. It is a great enlargement of the powers of the courts over the properties and customs of the people, and it constitutes an encroachment by the courts into a field that should be occupied by the direct legislative representatives of the people. The recent trend toward liberalism in our highest tribunal has been markedly in the direction of sustaining the power of the legislative branch. I do not believe that for this court to assume a power that it has forbidden to the legislature is by any means in accord with that trend.

I trust that I have said nothing that may be regarded as unduly emphatic, but I strongly feel that the arguments which I have attempted in a measure to meet are based upon dangerously unsound principles. I believe that the fact that the plaintiff is not entitled to sustain this suit because its property does not lie in an exclusively residential district is sufficient reason for the court's holding. I freely concede that the modern trend is toward sustaining zoning and regulatory ordinances, not, perhaps, where they are based upon aesthetic considerations, but by reason of a greatly liberalized concept of the safety, health and general welfare of the community, the necessities of which sustain the exercise of the police power. I feel very sure that the court should not undertake to do by injunction what may be questionable when done by the legislature in the exercise of its police power. I am quite certain that there is no trend of judicial decision in this country toward sustaining the powers of a court of equity to enjoin the continuance of a condition that is merely unsightly or offensive to aesthetic sensibilities. Because these conclusions are totally at variance with the discussion contained in the majority opinion, I feel that it is necessary for me here to express them.