*1 244 102, Section et
Jury, S., SO C. seq.; 262. There- § J. Juries fore, the error this assigned by without exception merit.
For stated, the reasons all exceptions are overruled and the order from affirmed. appealed Moss, C. J.,
Taylor, concur. JJ., Bussey, Lewis STRONG, Jr., Mrs. Cora Mae F. E. Strong, E. John A. Marion and Marion, Mrs. Rebecca S. Plaintiffs-Respondents, v. WINN-DIXIE STORES, INC., Howard, and Mrs. Beatrice S. Defendants- Appellants.
(125 (2d) 628) S. E. *2 York, Robinson, Moss, Jr., Mc- L. Messrs. James Moore, Columbia, Appellants, Faddin & for *3 Marion and W. Francis
Messrs. Andrew B. Marion, Greenville, York, and John A. Marion, Respondents, for 3, 1962. May
Lewis, Justice.
The sole for determination in this question appeal whether not the construction and operation store, retail referred to as a grocery on the supermarket, of the defendant Beatrice Howard in Town York, Carolina, South constitute nuisance.
The defendant Howard on to erect her proposes retail store large grocery and lease same for Stores, as such by Winn-Dixie defendant Inc. The plain- Marion, wife, tiffs A. and Rebecca S. husband John own and reside on to that of the defend- property adjacent Howard, ant Cora F. paintiffs Mae Strong and E. E. own and Strong, reside on across street Jr. from that of the defendant. This action was instituted to obtain a permanent injunction against pro- construction and posed store *4 defendants the that the same would upon ground constitute Referee, a nuisance. The to whom the re- Special issues were determination, ferred for and Circuit who heard Judge, the. the matter on referee, the have exceptions report found that the proposed operation the store nuisance, would a constitute and the lower Court permanent- ly enjoined the defendants from leas- constructing, erecting, or ing a operated supermarket other similar causing commercial venture the upon of the defendant Howard. The defendants have appealed from such rulings. defendant, brief, the Beatrice that
In the plaintiffs allege Street, on North Howard, is the owner of a lot Congress S. York, the lot across Street directly which the Town F.Mae from the residence of the Mrs. Cora plaintiffs, Strong residence lot of E. and the Jr., and E. adjoining Strong, Marion; that the A. Marión and Rebecca S. plaintiffs, John from the Howard prop- the to remove defendants propose said upon theron and to construct the houses erty dwelling twelve thou- building approximately supermarket area, surrounding paved sand feet in with (12,000) square thousand forty (40,000) area of approximately parking Inc., Stores, defendant, the Winn-Dixie feet; that square and said within building intends to operate supermarket from the business of revenue an annual gross anticipates dollars, will, one million ($1,000,000) approximately traffic, hazards, increased motor create greatly necessity, confusion, fumes, dust, noise, unsanitary trash and general numerous motor conditions; by that the store will be serviced hours; as, well after normal trucks during, de- of this will the and supermarket construction operation homes, of their enjoyment quiet prive plaintiffs area, reason of in residential unique which are situated therein and which is wide- located of houses type age its historical and its for value known and ly recognized would in- supermarket beauty; and members of their to the health of jurious households; the construction of this store that if respective and ir- will decrease value their property is commenced result; an and that to the plaintiffs reparable injury the construction be issued prevent should injunction of the proposed supermarket. admits that a of the defendants The answer nature, with paved parking size approximately area, is to be constructed as described complaint, with the de- the defendant Howard under a lease agreement fendant, Stores, Inc., which will operate Winn-Dixie same, and that the construction will replace dwelling *5 houses on now the Howard It it further property. alleged that the area live plaintiffs is not predominately residential there are no restrictions building ordinance which would use zoning of defend- prohibit ant’s for commercial The defendants purposes. deny that the construction and wise interfere with the any enjoyment by
of their homes or constitute a nuisance. respective
There little very basic facts in dispute this case. The area involved located on North Street in the Congress block to the main immediately adjacent business section of the Town of York. North Street is one block in Congress and runs north and south. On length the south it continues into Main Street at which it intersects East point Madison which runs east and At Street west. the north end it forks into Lincoln Road and Mountain Street where it in- King’s Blackburn Street which runs east and tersects west. North lies, therefore, between East Madison Street Congress It is a Blackburn Streets. the state part system, highway U. S. No. and S. C. No. being Highway Highway count, an 49. official traffic an According average 4700 vehicles travel this street 24 hours. every
The block in which the is located question Street, is bounded on the south East Madison on by east Railroad, C. & N. on by W. the north Black- burn and on Street the west North Street. Congress Across the railroad is located both residential and commer- cial It is enterprises. that the on undisputed property fronting East Madison Street is devoted to commercial entirely pur- and that there ais small store located on poses Blackburn Street. north from East Madison
Proceeding Street the main business section of the Town of York North along Congress Street, the first on the east is a side lot fronting on 40 feet said street and back East Madison running along Street a distance of 141.5 feet which is located a on. busi-
250 is now used as a flower
ness This corner building. building station at time used as a service gasoline but one was shop, to the rear station. of Immediately thereafter as a bus and on East Madison Street are and the flower shop fronting a shoe and a shop dry which are located store buildings is The next business. laundry property cleaning is and op- on which it to erect of the defendant “L” This lot forms an around the a supermarket. erate fronts on North Street a Congress corner lot and above dis- Madison Street a feet and on East distance of 263.5 feet, back from North Street Congress tance of 55 running line of the the feet along property a distance 309.5 Marion, who the Rebecca S. are A. and plaintiffs, John There is located on the north. owners to property adjoining which will removed lot two residences Howard the of the supermarket. construction Congress on North Street Marion fronts The property than of 100 and has considerable more depth a feet distance The back portion defendant. adjacent property lot on the south by prop- of the Marion is bounded of these on East Madison One which fronts Street. erty within and is a a manufacturing enterprise houses buildings line, houses a another now inches of the Marion few runs back of the defendants furniture store. The property estab- manufacturing to this from North Street Congress on the front is situated lishment. The Marion residence front of the house is approximately of their lot and the part Street. North Congress feet from the edge lot owned the Marion a large To the north of property York, is located a residence now the Town of by upon back There is located on the to house a library. used public stand and a concession swimming pool of this lot public therewith. used connection is, therefore, Marion bound- property now used and east by property ed on the north south on the and a swimming pool, library public public furniture store property, manufacturing plant, defendant, and the and on the west North Street, Congress defendant it separating from the above mentioned flower shoe and the shop, shop, dry establishments. cleaning laundry across Immediately the street and in front the Marion located large residence which the owners reside and as a hotel for rooms operate with a only, large neon sign at yard, lighted it as night, advertising *7 such.
The plaintiffs Cora Mae F. and E. E. Strong Strong, Jr. own the property to the above adjacent mentioned hotel and property reside in the residence located thereon. As stated, heretofore reside they across the immediately street from the of the defendant property Howard. Immediately the south of the and it Strong property, from separating Street, Madison lota on which is located a residence which house, now used as a rooming apartment the owner one room therein. occupying
Without further detailed analysis, the record shows that all of the on North property fronting Congress Street is used for residehtial either owner purposes, occupied rented as rooms and apartments, residence used as except a hotel and the above mentioned used as a building flower shop.
The record shows defendants intend to construct defendant upon Howard a building Stores, Inc., which the defendant Winn-Dixie will operate retail business. The large proposed building is to be 90 feet North Street with a facing Congress depth Marion line 144 feet. The along front of the be would 125.5 feet building back from the sidewalk on North Street. The Congress wall of the solid, the Marion line building along would be with no open- There would be a ings. 40 feet space between the east wall of the and the building east line of the de- foods, where etc.
fendant for a area the building service not oc- in at the east entrance. premises can be brought with entrances paved, would building cupied East Madison Street North and into both exits from area would provide Street. The paved parking Congress will be used park- Mercury lights light vapor spaces. after 7:00 o’clock area, will not be lighted p. but these ing in the store would when lighted an interior light Only m. will transact that the supermarket It is estimated it is closed. one million of approximately ($1,000,- an annual business two hunderd thousand dollars from approximately 000.00) of the store will be customers. The operation (200,000) and will be to that of other serviced supermarkets similar trucks each day. contend that the with- building
Plaintiffs do not Rather, contend they a nuisance. in itself would constitute business as con- therein of a retail grocery the operation constitute a nuisance in the defendants would templated by of its and the manner proposed opera- the location view tion. have found and the Trial Referee Judge
Both Special *8 residen- in is predominantly area question as fact character, concede the correctness of and we may tial in is adjacent immediately this the area although finding, of York and commer- section of the Town the main business block in encroached into the have question. cial enterprises therefore, that area is resi- predominantly Conceding, dential, it not follow necessarily operation does It should be enjoined. undisputed of the supermarket in deeds to the no restrictive covenants that there are or ordinances Town in zoning question of the de- York, the use which prohibit conceded, It is Howard for commercial fendant purposes. so, of a re- that the construction and operation and correctly in a residential area not tail store or grocery se. Essick v. to constitute nuisance per such an activity
253 Shillam, 373, 416, 347 1399; Pa. 32 A. 146 A. L. R. (2d) Rich, Roberts v. 200 497, Ga. 37 401; S. E. Anno.: (2d) 1407; 365, 146. A. L. R. 39 Section 98 Am. (Cum Jur. mulative Supplement). of a operation business, retail is a grocery lawful
the record shows that conclusively the business be operated by defendants conducted accordance with the laws of both the State and the Town York. Therefore, if the are entitled to an injunction pro- this hibiting otherwise lawful business must activity, they show that the such defendants by fact, will constitute a nuisance or accidens. per A nuisance is hurt, which works incon “anything venience, or which damages; in anything essentially tereferes with the or enjoyment life property.” State ex Co., rel. v. Lyon Columbia Water Power 82 S. 181, 884, A., S., 435; C. 63 S. E. 22 L. R. N. Deason v. Co., 328, Southern 142 S. Rwy. C. 140 S. 575. E. act,
A nuisance accidens is per “an or occupation se, structure not a nuisance per but one which may become circumstances, a nuisance reason of lo cation, 290, 11; or Am. 39 Section surroundings.” Jur. Co., 442, Woods Rock Hill v. Fertiliser 102 C. S. 86 S. If, therefore, E. 817. of the retail grocery all, is a nuisance at it must be such by reason of question or the manner in it is its location conducted. The action here is to restrain the proposed opera tion of a retail store the defendants upon that the threatened ground anticipated opera case, tion will result in nuisance. In a of this prior appeal Inc., Stores, 552, v. Winn-Dixie C. Strong S. 646, it held
S. E. was a demurrer to the overruling (2d) *9 in this action a court of complaint equity may enjoin a or threatened nuisance anticipated upon proper showing. rule, is This in accord with the as stated in the an general 884, in notation 55 A. L. R. “an injunction may case, conditions in a sought even though granted proper se, to in per not amount a nuisance to be restrained would of a term, if there a showing prac- the strict sense of that in- a kind would an of which justify certain tically injury nuisance.” an existing junction against However, the an will not interfere where equity doubtful, or con nuisance is contingent, ticipated relief To entitle one injunctive against to jectural. nuisance, or it must private, threatened or public anticipated result inevitably necessarily will that a nuisance appear is not it is It sought enjoin. act or from the thing to or acts threatened to show that anticipated enough must show that nuisance, the evidence become a but may use the premises from the proposed a nuisance inevitable bemay If the proposed result. necessarily or will nuisance, not constitute a an way such operated nuisance must be not issued. The will alleged injunction of the business. 39 operation result of the the necessary Nuisances, 151 and 152. Cases with Jur., Am. dealing §§ annota following are found collected the question 724, 937, 32 L. 749, R. R. R. 26 A. L. A. : A. L. tions 7 A. R. 880. L. relied upon by plain- What then are circumstances tiffs, which, claimed, constitute the op- it is a nuisance? eration supermarket will be that they deprived It is contended by of their homes enjoyment peaceful it to their homes because close proximity noise, will, traffic, create increased of necessity, greatly conditions, re- confusion, dust, unsanitary trash general their health value depreciation sulting injury their property. will attract The fact that the store in automobiles with the to the area numbers people basis, incident thereto affords no noise and fumes case, to itself, under the facts declare the of this within
255 re- a must be nuisance. Such question business facts, the solved in the of area involved. light considering the They Plaintiffs do not reside in a residential area. secluded now reside on a street over an of vehicles average which are 350 feet of all each of They travel within types day. York and district of the Town of the main business within one of the block the location Store present Winn-Dixie in A of the boundary railroad runs the York. along eastern live, located cotton block in which which is a they beyond oil manufac- mill and manufacturing another concern. A a turing part constitute enterprise and store furniture lot, in to the southern boundary of the Marion addition location of other business East along nearby commercial Street, A Madison swimming public pool concession the rear of Marion stand is to immediately operated record from which the as- There in this nothing property. be there be mass entrance may drawn that sumption will to from motor vehicles or exodus the supermarket remain late at hours. The store will not unreasonable open Rather, is that the at the reasonable motor assumption night. business in day traffic over usual vehicle spread store. The the normal visiting patrons manner the service entrance for trucks record further shows that to store is to be and merchandise food bringing produce, from the Marion side of the building away located on east adjacent manufacturing and immediately residence Madison Street. on East now fronting enterprise which the reside is pre- the street on While residential, fact remains that are in they dominantly area, commer- nearby with close proximity the noises and congestion them to cial subjecting enterprises, the business motor vehicles the operation attending very heavily on which live they The street district. must be The issues here determined travelled state highway. “No one is entitled absolute of these facts. in the light his he insist property; may only enjoyment quiet consistent with the standard a degree upon quietness of comfort locality which he prevailing dwells. The (cid:127) location and considered, must be surroundings noise since which amounts to a nuisance one locality may entirely in another. The character proper magnitude or business industry of and the manner in complained *11 is it conducted consideration, must also be taken into and so noise, must the character and volume of the the time * * occurrence, *, and duration itsof and all the facts and 332, circumstances of the case.” 39 Am. 47.§ Jur. out, As heretofore the store pointed will not late operate at and there is no night evidence from which it bemay rea- sonably concluded that the movement of traffic and from will inevitably health of the endanger or disturb them in the reasonable enjoyment their homes.
The contention that the anticipated operation business will trash, into the bring neighborhood lit ter, and conditions unsanitary affords no basis to restrain the of the store. grocery, Presumably the Town of York has ordinances with matters, such dealing However, that they would enforced. if such situation in business, it can be develops remedied at that is time. There no that such showing results are inevitable. Referee, while that Special there conceding was
no direct evidence that dust will created by the store, operation of assumed that more dust would be in the area than now exists. The Trial Judge correctly reversed this as without finding being evidentiary support.
There some was as to testimony depreciation in value area the event the property super market is This permitted evidence con operate. sisted individuals, it is expressions opinion by matter of speculation to whether such any depreciation however, would result. Assuming, the evidence shows that such result, depreciation this would not be sufficient “A in this case. the injunction itself to warrant granting cannot be not create a nuisance which does use of because it merely abated or a structure lawful enjoined S., C. less valuable.” 66 renders neighboring J. 309, Nuisances, 28. The 771. Am. § 19(d), page § Jur. Com in Dean v. Powell Undertaking rule thus stated 1015, 545, 203 “The trial court 55 Cal. P. 1018: pany, App. for residential found that the value the plaintiffs’ property alone, standing will be Such findings, purposes depreciated. the de not other showing findings supported maintain, nuisance, or is about fendant is maintaining, In instances many will not the judgment. populous support of one person depreciated neighborhoods of another. Such burdens of the property the near proximity residence and a city.” incidents to ordinary ownership are will be used to The fact that outside lights light *12 store, around the and create ob may area parking is not sufficient ground restrain jectionable glare, it becomes business. If necessary, the operation time, at the or of the ad may enjoined operation lights objections. meet the justed plaintiffs’ no reasonable basis for the The facts of this case afford the lower Court that the conclusion reached or necessarily inevitably of the such does result from the operation result in a nuisance. If to the business, will be available remedy of the appropriate at that time. plaintiffs desires of we are not of the legitimate
While unmindful in char- residential their keep neighorbood plaintiffs acter, their desires by not they may accomplish appropriating between them of the defendant a barrier property This is the effect of decision of the business district. involved on the of a the lower Court. area lies fringe have moved already area. Commercial enterprises business block which the reside. The property into the plaintiffs of the defendant is bounded on the south completely uses, east by commercial and the plaintiffs Marion is so bounded. The partly defendant, if affirmed, the lower Court is will be maintained as a bar- rier between the Marion and the business prop- erty located on North so, Street. In Congress doing decision of the lower Court would deprive defendant of the most use of A advantageous her store property. is a lawful business. The defendants are not prohibited from it on their either operating restrictive covenants ordinances, and the zoning facts fail to show that in the manner of its the business will constitute a nuis- ance. Under such circumstances the defendants have a con- stitutional to make the right most of their use advantageous property.
The effect of the decision of the lower Court will be to stifle all of the business growth area of the com established, munity. When towns are the business district is usually confined to a small area. As the town grows develops business area into expands adjacent residential areas. An increase in population requires pro portionately expanded community. Change characteristics aof neighborhood is inevitable. The extent of the business area in a town and its location are matters which cannot be controlled and determined by de judicial cision. The of such matters is regulation reserved normally under the to the police power branches of legislative local and state The Court has no government. to zone power *13 property.
It is true that the Referee and the Trial have Judge made concurrent of fact that the findings will constitute a supermarket nuis However, case, ance. in an where such equity are findings them, without evidence to or are support the clear against evidence, this preponderance Court not only has the reverse, but the power duty. 1, v. Young Levy, 206 S. C. 32 S. E. 889. Such is the case (2d) here.
259 Home, 201 Parker Funeral cases Fraser v. Fred Brown, v. 212 S. 88, 21 E. 577 and Young S. C. S. (2d) 673, counsel, involved dif- 156, cited 46 E. C. S. (2d) involved a funeral The Fraser case factual situations. ferent in As stated case cemetery. and the home Young kind in of this case, a case “in conclusion Fraser reaching facts involved.” mind the bear in particular it is necessary Reversed. Associate and M. Brailsford, C. J.,
Taylor, Jr., Jus- J. tice, concur. dissent. Associate J., Justice,
Bussey, Legge, Acting Associate (dissenting). Acting Legge, Justice 235 S. In the of the former appeal, of our decision light com 552, 646, we held the E. in which C. S. (2d) is demurrer, it is apparent sufficient plaint against rather than sues were factual before the Referee Special law, and operate to construct to wit’: about were appellants so, and, if would in the complaint, alleged result consequences such construction Consideration had they alleged? to the respondents in allega offered testimony support the voluminous Ref that the- Special convinces me tions of complaint fact, the Circuit Judge concurred eree’s findings result, were not affecting minor respects save certain nor to the contrary support evidentiary neither lacking long-settled of the evidence. Under clear preponderance are such concurrent findings rule, equity, cause being Wells, 606, 115 C. v. S. Galphin on appeal. conclusive Inc., 237 Palmetto 288; Properties, v. Hamilton S. C. (2d) I affirm the would 140, judgment 12. 116 S. E. (2d) S. C. below. concurs. J.,
Bussey,