*1 benefit; (6) imposed no was for his lessor the fence to be assured that
standards as manner; in safe gate and be built would (7) neighbors no notification lessor made gate and would be construct- the fence ed; and, (8) the road was lessor knew that injured by neighbors, and the traveled motorcycle, in boy particular. his on fact, sum- being genuine There issues mary been denied judgment should have Lammers, Lam- Kleibacker Wilson jury. to a and the issues Madison, mers, Parent, for Kleibacker &
plaintiff appellee. Burke, Falls, E. for defen-
John Sioux appellant. dant and MILLER, Chief Justice. appeal is an from the circuit court’s
This WINFRED, judgment that abandoned TOWN Plaintiff OF and other similar materials Appellee, auto bodies (junk) placed by specified on Charles Scholl by him constituted a nuisance lots owned SCHOLL, Jr., Charles E. Defendant Winfred, under ordinances of the Town Appellant. ordered South Dakota. The trial court offending junk from No. 17377. Scholl remove the judg- to enter some of the but refused Supreme of South Dakota. Court declaring junk on Scholl’s “home ment nuisance, allowing him to Sept. place” Briefs 1991. thus Considered on thereon. continue his business 13, 1991. Decided Nov. challenges Winfred’s On proper- authority declare the ty a nuisance. We affirm.
FACTS the owner several lots there since Au- Winfred and resided gust, place” His “home consists of only on twelve and is the location lots actually he conducts his busi- which other Scholl is also the owner five ness. properties within Winfred. farm abandoned on
and abandoned properties. these other appeal primary centers issue No. Winfred’s 119 which around Ordinance enacted preserve health safety. 1989, Winfred, through November treasurer, advising its letter sent Scholl a *2 junk property him that the on his violated Derelict and Junk Motor Vehicles and Metals) ignored Scrap Ordinance No. 119. Scholl this no- authorizes. 30, 1989,
tice. On November Winfred initi- First, Ordinance No. 119 adequately action, requesting ated temporary this a type describes the of materials covered. injunction, an order for Scholl to show scope The of the expressly ordinance in cause, permanent injunction, a money following: cluded the damages. Weeds, dry grass, trees, cans, dead tin The trial court entered an order to show abandoned autos and auto bodies and granted temporary injunction cause and a similar upon any public or restraining bringing Scholl from in addi- private property are declared a nuisance junk. tional hearing, After a show cause and shall disposed be of under this ordi- the trial court of fact and (Emphasis added.) nance. refusing conclusions of grant junk trial court concluded the left on request permanent injunc- for a property (excluding Scholl’s the “home showing tion because irrep- there was no place”) was a health hazard and fell within arable harm. the definition of abandoned bodies, or similar materials. think it merits,
After the trial on the the court clear the sufficiently ordinance defined the (ex- junk held that the property type of autos and materials to be declared cluding place”) the “home constituted a nuisances. nuisance under Ordinance No. 119 and di-
rected appeals. that it be removed. Scholl Secondly, Scholl contends there was supporting
no evidence the trial court’s conclusion property the DECISION was a nuisance. The trial court heard tes municipal Winfred is a corporation. * timony adjoining from Scholl land SDCL 9-1-1. As a municipality, Winfred owners. enact, make, “may amend, revise, repeal or During dumped fifty loads ordinances, resolutions, all such regu- junk, including aban- may proper lations as necessary be doned farm and abandoned and carry powers granted into effect the there- _” adjoining auto bodies on the lot the po- SDCL 9-19-3. Included in its home, they Eichmann where live with their powers, lice Winfred declare what con- young two children. Scholl also left at stitutes a nuisance and is authorized to least a dozen abandoned auto bodies and prevent, abate and remove nuisances. adjoining other similar materials on a lot Furthermore, municipali- SDCL 9-29-13. property containing Terwilliger resi- ty power necessary has the to do what is dence. These auto have locat- been expedient promotion for the of health or ed there since 1984. suppression of disease. SDCL 9-32-1. power, police Pursuant this Winfred en- good neighbor- As a further indication of acted Ordinance No. 119 in liness, placed junked delivery van directly on his lot south of the Carlson December, van, home in 1987. On this Scholl claims the ordinance spray painted “Merry the words X- fails to define the kind of cars and materi- mas.” The van has not been moved since als to which the ordinance is directed. Ad- that time. ditionally, Scholl claims no evidence was property on whether his was a The trial court concluded that the Finally, (ex- Scholl contends properties Ordi- on Scholl’s several being nance No. 119 is cluding place”) utilized a broader fell within the (Abandoned, manner than ch. SDCL 32-36 definition of abandoned vehicles and sim- * Interestingly, frequently the trial court found false. unreliable, evasive, testimony that Scholl’s HENDERSON, (concurring). ordinance, Justice were a materials under
ilar
therefore,
and,
re-
should be
business-wise,
been,
de-
Scholl has
every
grants
mu-
9-29-13
moved. “SDCL
He
as
stroyed hereby.
known
*3
power to ‘declare
nicipality
express
place,”
his business.
to conduct
pre-
shall constitute
nuisance
what
us,
deposit-
In
before
the scenario
”
vent,
City
same.’
and remove the
abate
scrap
car
ed these
bodies and
204,
Wellman, 352 N.W.2d
Aberdeen v.
town,
of
population
in this little
other lots
(S.D.1984).
conclusions
“A trial court’s
206
children, living in homes
Thereby, small
set aside on
of law
be reviewed
thereto,
contiguous
are ex-
adjacent and
court has erred
appeal only
the trial
when
could
posed to an
nuisance which
attractive
Dependen-
of
Matter
as a matter
law.”
endanger their bodies and lives. As
of
A.L.,
233,
concluded,
442
haz-
N.W.2d
it was a “health
cy
Neglect
trial court
of
ard.”
(S.D.1989);
Temple, 365
Temple v.
235
(S.D.1985).
is settled
in
It
N.W.2d 561
Findings of Fact
There were extensive
this state that:
9,1990)
(20
and Conclu-
on October
date).
(20
same
Under
of Law on the
sions
at
public
is one which affects
A
282,
Hobelsberger, 85 S.D.
In
Estate
re
of
community or
time an entire
the same
(1970),
these
were
JJ., concur.
HENDERSON, J., writing. concurs with