39 So. 3d 159 | Ala. Civ. App. | 2008
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On June 12, 2003, Reuben D. Hall and 45 other residential real-property owners in Elmore County (hereinafter collectively referred to as "the local residents") sued North Montgomery Materials, LLC ("the mining company"), and Andrea Wood Katsarsky, requesting the Elmore Circuit Court to declare the mining company's proposed granite quarry a public and/or private nuisance and to enjoin the mining company from operating the quarry. On July 24, 2003, the mining company moved to dismiss the complaint. The circuit court denied that motion, after which the mining company answered the complaint and the parties engaged in discovery.
On June 2, 2005, the State of Alabama1 filed a complaint against the mining company in a case numbered CV-05-254, requesting the circuit court to declare the proposed quarry a public nuisance and to enjoin its operation. On motion of the local residents, the circuit court consolidated the State's action with the instant case. It is apparent that the cases were consolidated for the purpose of trial only and that each case retained its separate identity. See Rule 42(a), Ala. R. Civ. P. The cases were jointly tried on December 14-15, 2006. From a judgment in favor of the mining company, the local residents appealed to the Alabama Supreme Court. This case was transferred to this court by the supreme court, pursuant to §
The evidence established that the mining company owns 80 acres and leases from Andrea Wood Katsarsky the mineral rights to an additional 140 acres of land at the intersection of county road 428, known as Providence Road, and county road 462, known as Jackson Trace Road, in Elmore County. The mining company plans to conduct a granite-mining operation on the site.
The site of the proposed mining operation is not visible from the road. It is situated "down in a hollow" at the lowest point on the mining company's property, surrounded by a 50-foot no-mining buffer. The site is located in an unzoned, rural area of north Elmore County known as the Buyck community. There are no other businesses in the area. The area is primarily residential, with 48 dwellings, a church, and a cemetery within a mile of the site. The nearest school is 16 miles away; the nearest convenience store/gasoline station is 2 or 3 miles away. Most of the local residents are retired; many are people whose families have lived in the area for generations.
The evidence established that the mining company proposes to produce 450,000 tons of gravel per year from its mining operation and that, once production begins, the mining operation will have 100 to 120 trucks, each 81/2 feet wide and weighing 88,000 pounds fully loaded, being driven by independent haulers traveling into and out of the quarry site every day. The local residents testified that they believed the operation of the quarry would destroy the peace, tranquillity, and unspoiled nature of the area. They objected to the air pollution, water pollution, noise, heavy-truck traffic, and deterioration of the local roads that, they claimed, would inevitably occur when the mining operation commenced.
The mining site is located several miles from U.S. Highway 231. The site may be accessed from Highway 231 via three routes. The first route involves exiting Highway 231 onto county road 429, known as Buyck Road, driving northwest approximately five miles, then turning east onto Providence Road for about half a mile to the point where the entrance of the quarry lies. The second route travels from Highway 231 northwest onto Buyck Road, turns north onto Jackson Trace Road, and then west onto Providence Road, a total distance of about three and one-half miles. The third route travels almost due west from Highway 231 on Providence Road for about four and one-half miles. A vehicle traveling on Highway 231 north from Montgomery, the nearest large city, would encounter the Buyck Road exit first and then the Providence Road exit a few minutes later.
All three county roads are referred to as farm-to-market roads. They were not designed for heavy-vehicle use. In the 1930s and 1940s these roads were composed entirely of dirt. In the 1950s or 1960s, the county paved the roads using unknown base materials. The paved driving portions of the roads are at all points 21 feet wide or less and at some points, including the entrance to the quarry, are only 17 feet wide. Providence Road and Jackson Trace Road, which have not been substantially improved since they were first paved, have little to no shoulders. The pertinent portions of Buyck Road were resurfaced in 2004 or 2005, and the shoulders of that road were widened to meet Department of Transportation specifications for county roads. Providence Road has a posted weight limit of 25 tons; the other roads do not have any posted weight limit.
The roads are used primarily by the local residents to access their homes, but they are also traveled by residents of Coosa County heading to and from Highway 231 and are sometimes used by bicyclists. *165 In addition, school buses and a garbage truck regularly use the roads. Occasionally, but not often, logging trucks and gas trucks travel the roads. When the county improved Buyck Road, its asphalt trucks used Jackson Trace Road, which rutted and damaged the road. Although the county patched the road afterwards, the garbage truck servicing the area has undone some of the patch work. The local residents who testified at trial all agreed that the current conditions of the roads, though poor in places, adequately meet their driving needs.
Reuben Hall testified that he had lived in the area for the first 28 and the last 18 years of his life. He explained that, in the interim, he had worked for a Mississippi chemical company and had owned a fertilizer business. He testified without objection that he was familiar with the type of trucks — tri-axle, semi-trailer, open dump trucks — and the common practices of the independent haulers who drive the trucks that would be used in the mining company's quarry operations because, he said, they are the same as in the fertilizer industry. Hall stated that the truckers typically haul a minimum of three loads per day. He testified, without objection, that these trucks would line up near the entrance to the quarry site each morning to pick up their first loads well before the quarry opened, blocking one lane of traffic at and near the intersection of Providence Road and Jackson Trace Road. Hall calculated that, in order for the mining company to meet its projected goal of producing 450,000 tons of granite per year, on an average 8-hour work day 60 trucks would enter and leave the quarry along the roads, a rate of about 1 every 5 minutes.2
Hall stated that the trucks are equipped with a compression braking system, or what are called "jake brakes," that, he said, sound like a machine gun. He predicted that the noise of the trucks would awaken everyone in the area in the pre-dawn hours. He testified that tri-axle dump trucks are harder on paved roads than standard semi-trailer trucks because their load center is "right over the three axles."
Hall identified a number of photographs that were admitted into evidence. The photographs depict the condition of Providence Road, Jackson Trace Road, and Buyck Road. Some of the photographs show the narrow or nonexistent shoulders on those roads; some illustrate drop-offs or embankments beyond the paved surface of the roads; some depict little or no clearance between two tri-axle dump trucks meeting each other side-by-side on various sections of the roads.
David Bufkin, the county engineer for Autauga County, testified that Providence Road and Jackson Trace Road are not wide enough to handle 2 gravel trucks, each 81/2 feet wide, meeting on a road that is only 18 feet wide. Bufkin testified that Providence Road would deteriorate under the expected heavy use if it were not rehabilitated. He stated that the resurfacing of Buyck Road did not strengthen the base of the road, so it was also susceptible to similar damage. Bufkin testified that the continuing use of the roads by the trucks would first cause potholes and then, he said, the roads would eventually degenerate into dirt roads. He gave his opinion that the number of trucks that would travel the county roads every day as a consequence of the mining operation greatly *166 increased the chance of accidents and presented a danger to the motoring public.
Richie Byard, the county engineer for Elmore County, testified that Providence Road has no shoulders in many places where there are embankments or drop-offs beyond the paved edge. Byard acknowledged that substantial heavy-truck traffic would cause both Providence Road and Jackson Trace Road to deteriorate quickly. He testified, however, that it was feasible to reclaim Providence Road in order to make it suitable for 120 heavy trucks per day. He explained that when the Alabama Department of Environmental Management ("ADEM") issued the permit to the mining company, the Elmore County Commission had "tr[ied] to be proactive to address the condition of the roads" before the quarry opened for business. He said that, at the request of the county commission, he had developed a plan to upgrade Providence Road. Byard stated that the mining company had approached the county commission with an offer to provide free material for widening the shoulders of Providence Road and had indicated that, if the county could obtain any grant funds for road maintenance, it would be willing to pay the matching funds on the grant. Byard testified that Providence Road, as a farm-to-market road, was not eligible for federal grants but that the county did apply for a grant from the state's Industrial Access Road and Bridge Corporation, see
§
Byard identified an application that he had submitted on behalf of the county commission to the corporation board, setting out a plan to widen Providence Road to 24 feet, to widen the shoulders to 3 feet, to reclaim and reconstruct the base of the road, and to "repave the road with a buildup that would have a better chance of standing up to [the] truck traffic." Byard testified that several of the local residents and a local senator had attended the hearing on the grant application and had objected to it. The board of directors of the corporation denied the application. No one testified as to the reason the application was denied, but Hall testified that he doubted that the denial was based on the objection of the local residents. Due to the rejection of the grant application, the county did not have the funds to reclaim Providence Road. According to Byard and Bufkin, if the application had been approved and the plan had been implemented, Providence Road would have been sufficiently rehabilitated to handle the expected truck traffic.3
Patsy Cardwell testified that she drives an eight-foot-wide school bus on the roads every weekday, carrying special-education students.4 During her morning route, Cardwell normally encounters no other traffic except two other school buses. Because she expects to meet these school buses, she is prepared to pass them without incident; however, Cardwell testified that if she were to encounter an oversized vehicle she would have to slow or stop and move part of her bus off the paved road. Cardwell testified that this maneuver would pose a tipping hazard because of the shoulder conditions along the roads. Jim Gwin, a local landowner, testified that he believed emergency vehicles would also encounter *167 difficulty along the roads when meeting the quarry trucks.
Winifred Harris, a retired Huntingdon College English professor, testified that she grew up in the area, lived in Montgomery during her working life, and inherited from her father 72 acres on Jackson Trace Road, directly across from the mining site. She testified that she was familiar with the history of the Buyck community, a place she described as "quiet and beautiful." The area was settled in the 1830s and remained a thriving farming community until after World War II. Now, she said, the community is primarily residential, with some recreational second homes used for hunting and fishing. She testified that her property was currently valued at $400,000 to $500,000, but she estimated that, if the quarry were allowed to operate, the value of her property would drop to $100,000 to $120,000. She gave her opinion that the quarry would degrade the lifestyle of the community by causing noise, truck traffic, water pollution to Weoka Creek, and air pollution in the form of fine silica dust. She admitted that she had taken an active role in opposing the industrial-access grant to improve Providence Road because, she said, "as a member of this community and as a taxpayer [she] felt there were many more roads that needed improving and . . [she] felt that if the grant was awarded, [she] . . . would be subsidizing an industry that was going to destroy [her] way of life, [her] community."
Two witnesses testified for the mining company — Bradford O'Dell, a co-owner of the mining company, and Larry Speaks, an engineer who had contracted with the mining company to design the layout of the mining operation and to apply for the necessary permit from ADEM. In order to obtain the permit, the mining company had been required to submit information concerning, among other things, its plan for controlling water runoff and particulate discharge. O'Dell stated that the permit had been issued in 2003 and that at the time of trial in 2006 all the necessary plant equipment — a ramp, a hopper, a feeder, a jaw crusher, two conveyors, a shaker screen, a stacker and a crusher — was in place and two test blasts had been conducted. With the exception of some electrical work yet to be completed, the mining company was ready to begin operations. He stated that at the time of trial he and his co-owner had invested approximately $900,000 in preparing for the mining operation.
O'Dell testified that the mining company early on identified the inadequate roads as a problem. The mining company therefore contacted the Elmore County Commission, the governmental entity primarily responsible for the county roads, to determine if Providence Road could be "set up" to be the "main route" for the haulers. At that time, the mining company agreed to donate material to widen the shoulders of Providence Road and to match any funds the county received from grants to improve the road.
In response to the following question on cross-examination by the district attorney: "Do you agree that the roads as they currently exist will be insufficient for transporting the slag on a daily basis," O'Dell testified: "[N]o, sir, they are not acceptable." When the district attorney asked O'Dell if he knew what it would cost to "resurface or bring those roads up to spec[ifications] so that they could safely manage the traffic that would result [from the operation of the quarry]," the following occurred:
"MR. BAILEY [counsel for the mining company]: I object. The evidence is in the record that this county engineer prepared those documents, prepared that *168 application, and these plaintiffs opposed it. They opposed it. For them to come into court and take the position that that is a reason to stop a project because they didn't want a road widened so it would hurt the project is disingenuous at best. And it is — they have unclean hands to make that argument.
"MR. HOUSTON: The State of Alabama never opposed anything."
Larry Speaks explained that the mining company's particulate-discharge plan called for the installation of sprinkler systems at four or five locations — every site from which dirt and dust could escape — in order to control dust incident to the rock-crushing operation. With respect to the plan for controlling water runoff, Speaks said that the mining company had designated five permitted discharge points, each with a sedimentation pond that allowed the sediment to settle before any water left the site. He explained that the permit required the mining company to send a sample of the water discharge to a laboratory every two weeks in order to monitor the pH and total suspended soluble count of the water. Speaks said that ADEM would receive the laboratory test results on a quarterly basis but that it had the authority to inspect the site at any time. He said, however, that the mining company could not wait three months to address a permit violation; if a test sample were in violation of the permit terms, the mining company would have to address the violation immediately.
Speaks testified that, in addition to information concerning air-quality and water-quality plans, ADEM had required the mining company to address other issues in its permit application. Specifically, Speaks said that in order to address the other issues, the mining company had contacted the following entities: the Army Corps of Engineers, which sent a representative to the site to assess issues with respect to protected wetlands; the United States Fish and Wildlife Service, which determined that the mining operation would not affect any endangered animal species; a botanist from Auburn University Montgomery, who found no endangered plant life; and the Alabama Historical Commission, which decided that the mining operation would not disturb any known historical artifacts. Finally, Speaks testified that he had developed a reclamation plan for the quarry site and submitted the plan to the Alabama Department of Industrial Relations. The mining company had posted a bond of $2,500 per disturbed acre at the mining site and had agreed to the revegetation of all areas not covered by water.
Speaks acknowledged that, immediately before the trial of this case, ADEM had cited the mining company for a permit violation. He explained that one of the sedimentation ponds had not been large enough to prevent some sediment from escaping into a tributary of Weoka Creek, and, he said, the mining company had begun to address that problem even before ADEM issued the citation. When Speaks was asked whether the citation indicated that the local residents' concerns about water pollution in this case were valid, counsel for the mining company objected and stated that the company had just received the citation, that it had seven days to respond to ADEM, and that Speaks was preparing the response. The circuit court sustained the objection on the ground that the question called for speculation on the part of the witness.
Speaks testified that ADEM regulations for the mining site would allow less sediment to wash off the site than the sediment that would typically wash off the property if it were used for farming, logging, or residential construction. He gave *169 his opinion that a granite-mining operation could be conducted on the site without causing undue harm to the surrounding environment or the local residents if the operation were conducted in accordance with the terms of the permit.
Speaks acknowledged that neither he nor ADEM had addressed any road-structure issues in the permit-application-and-issuance process. He said the condition of Providence Road ranged from "decent" to "pretty bad." He described Jackson Trace Road as "awful" and said, "You can't get a truck down through there." The following occurred on cross-examination:
"Q [By counsel for the mining company]: You design roads. Are you familiar with roads of this type and quality?
"A. Yes, sir.
"Q. Do you have a judgment and opinion if you put 120 tri-axle trucks, some weighing empty 30,000 pounds, some weighing full 88,000 pounds, how long Providence Road would last?
"A. About the same thing [the] county engineer told you yesterday, even though I would probably say it would be a little bit less that what they said.
"Q. Are you familiar with Jackson Trace Road?
"A. Yes, sir.
"Q. Would you have the same answer there?
"A. It is already torn up.
"Q. . . . . [W]hat is your judgment and opinion as to how long those roads would last?
"A. You can't tell. You can't tell truthfully. They may last a day. They may last a month. They are not going to last long."
On June 5, 2007, the circuit court entered the following judgment in case number CV-03-253, the local residents' action alleging that the mining operation was both a public and a private nuisance:
"This cause coming on before this court upon the consolidated trial on the merits for declaratory relief and injunctive relief, on December 14 and 15, 2006, and the parties appearing through counsel of record, the court received testimony at length, ore tenus and the court additionally making a road inspection of the subject area of the quarry site as well as the area of the residences of the parties, and the two identified Elmore County roads and upon hearing the testimony, the court hereby finds as follows:
"1. This court specifically does not find that the operation of the subject quarry is a public nuisance nor is the same found to be a private nuisance under §
6-5-120 et seq., Code of Alabama, 1975."2. This court specifically denies the relief of an injunction for the operation of the subject quarry and finds that the same further does not fall within the definition of a public or private nuisance under §
6-5-120 , et seq., Code of Alabama 1975."5
On July 11, 2007, the local residents appealed to the Alabama Supreme Court. *170
The supreme court transferred the appeal to this court pursuant to §
"A determination made by the trial court, when evidence is taken ore tenus, is favored with a presumption of correctness and will not be disturbed on appeal unless plainly erroneous or manifestly unjust, especially where, as was done in this case, the trial judge has made a personal inspection of the premises."
The circuit court's June 5, 2007, judgment does not contain specific findings of fact. "`It is . . . well established that in the absence of specific findings of fact, appellate courts will assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous.'" Ex parte Fann,
"A `nuisance' is anything that works hurt, inconvenience or damage to another. The fact that the act done may otherwise be lawful does not keep it from being a nuisance. The inconvenience complained of must not be fanciful or such as would affect only one of a fastidious taste, but it should be such as would affect an ordinary reasonable man."
§
"Nuisances are either public or private. A public nuisance is one which damages all persons who come within the sphere of its operation, though it may vary in its effects on individuals. A private nuisance is one limited in its injurious effects to one or a few individuals. Generally, a public nuisance gives no right of action to any individual, but must be abated by a process instituted in the name of the state. A private nuisance gives a right of action to the person injured."
§
"If a public nuisance causes a special damage to an individual in which the public does not participate, such special damage gives a right of action."
§
"A private nuisance may injure either the person or property, or both, and in either case a right of action accrues."
§
"Where the consequences of a nuisance about to be erected or commenced will be irreparable in damages and such consequences are not merely possible but to a reasonable degree certain, a *171 court may interfere to arrest a nuisance before it is completed."
§
The burden of proof cast upon one seeking to enjoin a proposed enterprise as an anticipated nuisance is higher than the burden of proof cast upon one seeking to enjoin an existing enterprise as a nuisance. See McCord v. Green,
"[T]he injunction of anticipated nuisances . . . [is an] extraordinary power[] that must be cautiously and sparingly exercised. Because of the great degree of caution that must be utilized, this Court has been exceedingly unwilling to enjoin a proposed enterprise until it has been proven at trial to be a nuisance.
"Although §
"`"It is a general rule that an injunction will be denied in advance of the creation of an alleged nuisance, when the act complained of may or may not become a nuisance, according to the circumstances, or when the injury apprehended is doubtful, contingent or merely problematical. And so where an injunction is sought merely on the ground that a lawful erection will be put to a use that will constitute a nuisance, the court will ordinarily refuse to restrain the construction or completion of the erection, leaving the complainant free, however, to assert his rights thereafter in an appropriate manner if the contemplated use results in a nuisance."'"
The local residents argue that the circuit court's conclusion that the proposed quarry did not constitute a public or private nuisance was plainly erroneous. They maintain that they met their burden of proving "to a reasonable degree of certainty" that the proposed mining operation would have consequences — noise, diminution of property values, air and water pollution, and increased traffic with attendant road deterioration and driving hazards — that, they say, would be irreparable and could not be compensated by money damages. We will address those arguments in the order presented.
In Parker, the Alabama Supreme Court affirmed a trial court's determination that the defendant's proposed operation of a dirt-racing track in a rural area would be a nuisance because, among other things, the noise levels of the unmuffled cars on the track would be excessive and would pose a *172
health hazard for residents adjacent to the track. TheParker plaintiffs presented the expert testimony of an audiologist who had analyzed the noise at an existing dirt-racing track nearby and had concluded that the elevated decibel levels there could cause hearing loss as well as changes in blood pressure and heart rate. The court held that the plaintiffs had "demonstrated that it is not reasonably possible for the proposed racetrack to be constructed and operated in a manner that would not create a nuisance."
In Morgan Concrete, 98 residential homeowners sought to have an ordinance rezoning an area from "light industrial" to "general industrial" declared void and to enjoin the operation of a ready-mix concrete plant on the rezoned property. By the time of trial, the plant had been operating for several months, and the plaintiffs produced the following evidence:
"[W]itnesses . . . testified that the plant produced loud and bothersome noises sounding like `jackhammers' and `large rocks beating against tin.' They stated these noises would commence early in the morning and were loud enough to be heard indoors. Some witnesses also testified that they were bothered by noises from frontend loaders and cement trucks entering the plant for their loads which often entailed banging the tailgates to dislodge sand residues."
Although our supreme court determined, in both Parker
and Morgan Concrete, that the parties seeking an injunction had satisfied their burdens of proof, it is significant that the plaintiffs' burden in Parker was higher than the plaintiffs' burden in Morgan Concrete.
The local residents in this case had the same burden as the plaintiffs in Parker, who were seeking to enjoin an anticipated nuisance. Unlike the plaintiffs in Parker, however, the local residents in the present case presented no evidence indicating exactly what injuries they were reasonably certain to suffer as a consequence of the noise that, they anticipated, would occur from the blasting or rock-crushing operations at the mining site. Compare Parker, supra (holding that elevated decibel levels at dirt racetrack could cause hearing loss as well as changes in blood pressure and heart rate) with Connecticut Bank Trust Co. v.Mularcik,
The local residents did, however, present evidence with respect to the noise that, they anticipated, would be caused by the trucks traveling to and from the quarry every day. The local residents' proof indicated that the trucks, which were equipped with "jake brakes" that sounded "like a machine gun," were likely to awaken the nearby residents in the early morning hours as they lined up outside the quarry site to take on their first loads of the day. See Benton v. Kernan,
"Whether or not noise in itself, constitutes a nuisance is a question of fact dependent on the nature and character of the noise, its constancy or frequency, and the extent of the inconvenience caused by it." Connecticut Bank TrustCo. v. Mularcik,
"`What may be a nuisance in one locality may not in another. Noises may be a nuisance in the country which would not be in a populous city. A person who resides in the center of a large city must not expect to be surrounded by the stillness which prevails in a rural district. He must necessarily bear some of the noise and occasionally feel slight vibrations produced by the movement and labor of its people and by the hum of its mechanical industries.'"Morgan Concrete,
Although the local residents presented evidence supporting their noisy-truck nuisance theory, the circuit court determined this factual question in favor of the mining company. Because the circuit court made a visual inspection "of the area of the residence of the parties" in relation to the roads, it could have concluded that the local residents' homes were set back far enough from the roads that the noise level of vehicles on the roads would not constitute a nuisance. Based on our standard of review, see Southwestern Construction Co. v.Liberto,
The local residents contend, however, that they established that the quarry would cause more than just a mere increase in the amount of traffic. Instead, they say, the evidence indicated that there would be a fundamental alteration in the quantity and quality of the traffic on the three roads — that once the quarry opened for business, Providence Road, Jackson Trace Road, and Buyck Road would change from little-used byways in a rural residential area to the routes of necessity for 120 overweight trucks per day — one every 5 minutes — with each truck weighing 15 tons unloaded and 44 tons loaded. The local residents point out that the evidence, which was unrefuted by the mining company's two witnesses, indicated (1) that the roads are unable to handle such traffic safely; (2) that the road surfaces will certainly and quickly deteriorate; and (3) that the motoring public will be endangered.
In opposition to the local residents' arguments regarding the allegedly unsafe condition and inevitable deterioration of the county roads, the mining company made four arguments at trial: (1) that it had no control over the trucks because they would be operated by independent haulers; (2) that maintaining the roads in a reasonably safe condition is the duty of the county; (3) that, notwithstanding its first two arguments, it had, nevertheless, offered not only to provide free materials for upgrading Providence Road but also to pay a portion of the cost of the upgrades; and (4) that the local residents, who had opposed an industrial-access grant to upgrade Providence Road, were barred by the unclean-hands doctrine from arguing that the condition of the roads was a basis for finding the mining operation a nuisance.
In its appellate brief, the mining company relies primarily on its second argument — that maintaining the roads in a reasonably safe condition is the duty of the county — pointing out that the evidence indicated that it was feasible to reclaim and rebuild Providence Road so that it would be able to withstand heavy-truck traffic. It is true that "[a] county has the duty to *175
keep its roads in a reasonably safe condition for travel and to remedy defects in the roadway on receipt of notice of those defects." Macon County Comm'n v. Sanders,
"The county commissions of the several counties of this state have general superintendence of the public roads . . . within their respective counties so as to render travel over the same as safe and convenient as practicable. To this end, they have legislative and executive powers, except as limited in this chapter. They may establish, promulgate, and enforce rules and regulations, make and enter into such contracts as my be necessary or as may be deemed necessary or advisable by such commissions to build, construct, make, improve and maintain a good system of public roads . . . in their respective counties, and regulate the use thereof. . . ."
The evidence was undisputed that the operation of the quarry will necessarily require the continuous use of heavy trucks on Providence Road, Jackson Trace Road, and/or Buyck Road that will certainly endanger the motoring public and damage the roads. The mining company presented no evidence to contradict Hall's description of the dimensions and weight of the vehicles that will be used to haul the quarry's product from the site or the frequency with which they will use the roads leading to and from the site. The mining company actually agreed with the evidence presented by the local residents that the trucks will impede traffic and cause severe damage to, and deterioration of, the roads in question.
Section
"[V]ehicles and combinations of vehicles, operating on highways with traffic lanes less than 12 feet in width, shall not exceed a total outside width, including any load thereon, of 96 inches, exclusive of mirrors or other safety devices approved by the State Transportation Department."
Obviously, this section was enacted to protect against injuries on the public roads. See Heathcock v. State,
Similarly, subsection (4) of §
In McCarter v. Ludlum Steel Spring Co.,
In Duff v. Morgantown Energy Associates,
Unlike the plaintiffs in Duff, the local residents in this case proved without contradiction that the intended heavy-truck use violated applicable weight and width limitations; that the use of the trucks would necessarily damage the roads; that this damage would be severe and fairly immediate; and that the damage would unduly increase the risk of accidents and injuries to the motoring public. These undisputed facts establish all the elements of an anticipatory nuisance under Alabama law. See Parker v. Ashford, supra.
Alabama law defines a "nuisance" as "anything that works hurt, inconvenience or damage to another." §
In Commonwealth v. Allen,
In determining whether to enjoin an anticipatory nuisance, a court may not "`"ignore the . . . inevitable consequencesto follow upon the conduct of the business which [the] defendant proposes to carry on, however well conducted."'"Parker v. Ashford,
The determination that the mining operation is apublic nuisance, however, does not end the inquiry in this case. Two additional questions are presented as a consequence of the fact that the circuit court entered no judgment in case number CV-05-254 — the state's public-nuisance action — and that the state is not a party to this appeal. First, it must be determined whether the local residents established that they had a right of action, pursuant to §
Of all the Alabama "special injury" cases, Barnes v.Kent,
In Barnes v. Kent, the court held that, although Barnes's obstruction of a public road interfered with the rights of all members of the public who wished to travel on that road, it specially interfered with Kent's rights because, to reach his property from the south, Kent had to travel two or three extra miles to avoid the obstruction. The court determined that Kent's special injury was not mitigated by the fact that he had unobstructed access to his property from the north.
In Scruggs v. Beason, the court held that the defendant's obstruction of a public road caused the individual plaintiffs a special injury different from the common injury to the public because the road was the only entrance to a cemetery where the plaintiffs' family members were buried. The court stated:
"A cemetery is a place not only for the burial of the dead, but for an expression of love and respect by the living for the dead. Hence there must be accorded to complainants not only the right of burial but also the right to visit, maintain and beautify the graves of relatives interred therein, without obstruction in the public road."Scruggs,
Reading Barnes v. Kent, Scruggs v. Beason, andSloss-Sheffield together, we discern the following principles: An individual who cannot reach his home (or any other destination, such as a family cemetery, that holds a significance that society is prepared to recognize as compelling) *179 without having to take a circuitous alternate route in order to avoid a public nuisance has established special injury different in kind as well as degree from the injury suffered by the public at large. A fortiori, an individual who cannot avoid a public nuisance by taking an alternate route to his home — because there is no alternate route — has established a special injury.
Applying those principles to the facts of the present case leads to the following conclusion: The local residents, who cannot travel to or from their homes without encountering the inherent danger of driving on Providence Road, Jackson Trace Road, and Buyck Road because those roads provide the only means of ingress and egress to their homes, established special injury different in kind as well as degree from the injury suffered by the public at large. Accordingly, they had a right of action, pursuant to §
"Defendants contend the trial court erred in failing to apply the comparative injury rule to find there was not a nuisance. As is well known, the comparative injury rule employs a balancing test to weigh the injury that may accrue to one or to the other of the parties, and to the public, by granting or refusing the injunction. Pritchett v. Wade,261 Ala. 156 ,73 So.2d 533 (1954). Defendants contend the service they are providing to the public at large . . . and the detriment to them from enjoining their activity outweigh any detriment to plaintiffs.
"However, plaintiffs correctly rebut this argument by pointing out that the comparative injury rule does not arise until after there has been a finding that a nuisance exists. Once the trier of fact determines that a nuisance does indeed exist, a balancing test must be employed to determine whether injunction is a proper remedy. The comparative injury rule is not employed, as defendants suggest, to determine whether a nuisance does, in fact, exist."
(Emphasis on "not" original; other emphasis added.)
The unclean-hands doctrine does not bar injunctive relief in this case. The doctrine contemplates that the party against whom it is asserted has been guilty of "morally reprehensible, willful misconduct," Retail Developers of Alabama, LLC *180 v. East Gadsden Golf Club,
Moreover, the local residents' actions before the county commission were only indirectly connected with the nuisance suit they later filed. Our supreme court has stated that "`[t]he misconduct which falls within the clean hands maxim must relate directly to the transaction concerning which complaint is made or the subject matter in litigation.'"Powell v. Mobile Cab Baggage Co.,
"`The misconduct which falls within [the unclean-hands] maxim must have infected the cause of action, so that to entertain it would be violative of conscience. It is not sufficient that the wrongdoing is remotely or indirectly connected with the matter in controversy.'"Id.
Finally, not all the local residents opposed the road-improvement grant, and the acts of some of them are not chargeable against the others. See Deitrick v.Leadbetter,
On remand, the circuit court has the inherent discretion to "balance the equities" in deciding how to abate the anticipated nuisance established by the local residents. See Pattersonv. Robinson,
The judgment of the Elmore Circuit Court is reversed, and the cause is remanded for further proceedings consistent with the principles outlined in this opinion.
REVERSED AND REMANDED.
THOMAS and MOORE, JJ., concur.
THOMPSON, P.J., and PITTMAN and BRYAN, JJ., concur in the result, without writings.