Hooks v. INTERNATIONAL SPEEDWAYS, INCORPARTED

140 S.E.2d 387 (1965) 263 N.C. 686

Claude HOOKS, A. G. Goins, D. J. Powell, D. J. Shelley, Elwood Robinson, Mickey Long, Cecil Gurkin, H. H. Collins, Henry Merritt, Luther High, and Daniel M. Spell, Officers and Trustees of Smyrna Baptist Church,
v.
INTERNATIONAL SPEEDWAYS, INCORPORATED and Marie D. Carter.

No. 688.

Supreme Court of North Carolina.

February 24, 1965.

Powell, Lee & Lee, Whiteville, for plaintiffs.

Powell & Powell, Whiteville, and Nance, Barrington, Collier & Singleton, Fayetteville, for defendants.

MOORE, Justice.

Plaintiffs seek to permanently enjoin an alleged prospective private nuisance. The substance of their complaint is that corporate defendant is in the process of constructing a race track and other facilities for the racing of automobiles on Sundays and holidays, the facilities to accommodate 12,000 or more spectators, and the race track to be located about 2500 feet from the Smyrna Baptist Church, an active church established 80 years ago and having a large membership and owning buildings and facilities valued at $175,000 and regularly holding religious services throughout each Sabbath and at other times, and that the noise from the racing motors, and the squealing of tires and the crowds assembled at the track will disrupt, and make impossible the conducting of, the usual church services on Sundays, and plaintiffs and those they represent will be irreparably injured by the construction and operation of the race track.

A race track is not a nuisance per se. But its operation may, under certain circumstances, be a nuisance per accidens, i. e., a nuisance in fact. Kohr v. Weber, 402 Pa. 63, 166 A.2d 871 (1960); Smilie v. Taft Stadium Board of Control, 201 Okl. 303, 205 P.2d 301 (1949); Rohan v. Detroit Racing Asso., 314 Mich. 326, 22 N.W.2d 433, 166 A.L.R. 1246 (1946); 66 C.J.S. Nuisances § 31, pp. 784-785. A race track may be a nuisance in a rural area. Kohr v. Weber, supra.

It is well settled that a court of equity may, under proper circumstances, enjoin a threatened or anticipated nuisance. Courts are reluctant to interfere by injunction in a legitimate business enterprise. Where the thing complained of is not a nuisance per se, but may or may not become a nuisance, according to the circumstances, and the injury apprehended is merely eventual or contingent, equity will not interfere. Wilcher v. Sharpe, 236 N.C. 308, 72 S.E.2d 662. "Where it is sought to enjoin an anticipated nuisance, it must be shown (a) that the proposed construction or the use to be made of property will be a nuisance per se; (b) or that, while it may not amount to a nuisance per se, under the circumstances of the case a nuisance must necessarily result from the contemplated act or thing. * * * The injury must be actually threatened, not merely anticipated; it must be practically certain, not merely probable. It must further be shown that the threatened injury will be an irreparable one which cannot be compensated by damages in an action at law." Pennsylvania Co. for Insurance on Lives and Granting Annuities v. Sun Co., 290 Pa. 404, 138 A. 909, 55 A.L.R. 873 (1927). In Causby v. High Penn Oil Co., 244 N.C. 235, 93 S.E.2d 79, it is said: "``The mere apprehension of a nuisance is insufficient to warrant equitable relief, and in order to restrain future acts with respect to the use of a proposed building, it is necessary to set forth facts which show with reasonable certainty that such result would likely follow.' Wilcher v. Sharpe, supra. As said by Walker, J., in Durham v. Eno Cotton Mills, 141 N.C. 615, 54 S.E. 453, 457, 7 L.R.A.,N.S., 321: ``"When the interposition by injunction is sought to restrain that which it is apprehended will create a nuisance, the proof must show that the apprehension of material and irreparable injury is well grounded upon a state of facts from which it appears that the danger is real and immediate.'" See State of Missouri v. State of Illinois, 180 U.S. 208, 21 S. Ct. 331, 45 L. Ed. 497; Commerce Oil Ref. Corp. v. Miner, 281 F.2d 465, 86 A.L.R. 2d 1307 (1st Cir. 1960), cert. den. 364 U.S. 910, 81 S. Ct. 274, 5 L. Ed. 2d 225; Phillips v. Adams, 228 Ark. 592, 309 S.W.2d 205 (1958); McPherson v. First Presbyterian Church, 12 Okl. 40, 248 P. 561, 51 A.L.R. 1215 (1926); Edmunds v. Duff, 280 Pa. 355, 124 A. 489, 33 A.L.R. 719 (1924); Lewis v. Berney, 230 S.W. 246 (Tex.Civ.App.1921); Lansing v. Perry, 216 Mich. 23, 184 N.W. 473 (1921); 39 Am.Jur., Nuisances, § 63, pp. 346-347; 55 A.L.R. 724; 26 A.L.R. 937; 7 A.L.R. 749.

In Barrier v. Troutman, 231 N.C. 47, 55 S.E.2d 923, it is said: "Where the nuisance is continuous and recurrent and the injury irreparable, and remedy by way of damages inadequate, equity will restrain, even though the enterprise be in itself lawful." Further: "To constitute irreparable injury it is not essential that it be shown that the injury is beyond the possibility of repair or possible compensation in damages, but that the injury is one to which the complainant should not be required to submit or the other party permitted to inflict, and is of such continuous and frequent recurrence that no reasonable redress can be had in a court of law."

Where a nuisance is private and arises out of the manner of operating a legitimate business or undertaking, a court of equity will, of course, do no more than point to the nuisance and decree adoption of methods calculated to eliminate the injurious features. Rohan v. Detroit Racing Asso., supra. In other words, a court of equity will not outlaw the entire operation if a decree restricting the time or method of operation will eliminate the injury. But if regulation will not abate the nuisance, the entire operation will be enjoined.

Mere noise may be so great at certain times and under certain circumstances as to amount to an actionable nuisance and entitle the party subjected to it to an injunction. Kohr v. Weber, supra. To amount to a nuisance, noise must be unreasonable in degree. Where noise accompanies an otherwise lawful pursuit, whether such noise is a nuisance depends on the locality, the degree of intensity and disagreeableness of the sounds, their times and frequency, and their effect, not on peculiar and unusual individuals but on ordinary, normal and reasonable persons of the locality. Smilie v. Taft Stadium Board of Control, supra. See Clinic & Hospital v. McConnell, 236 S.W.2d 834, 23 A.L.R. 2d 1278 (Mo.App. 1951); 66 C.J.S. Nuisances § 22, pp. 772-775.

A pursuit which will create conditions rendering the appropriate enjoyment of surrounding properties impossible invades the rights of others, and equity will restrain the persistent pursuit of such injuries. No one is justified in establishing, adjacent to a church, a business or amusement the noise of which will render practically impossible the continuance of the customary religious services in the church. First M. E. Church of City of Cape May v. Cape May Grain & Coal Co., 73 N.J.Eq. 257, 67 A. 613 (1907); McPherson v. First Presbyterian Church, supra.

Applying the foregoing principles to the complaint in the instant case, we are of the opinion that plaintiffs have alleged facts sufficient to constitute a cause of action for permanent restraint of the construction and operation of the race track. For the purpose of testing the sufficiency of the complaint, the demurrer admits the truth of the factual averments well stated and relevant inferences of fact reasonably deducible therefrom. 3 Strong: N.C.Index, § 12, pp. 625-626. The complaint pictures a rural church where for generations the people of the neighborhood have gathered each Sabbath to worship according to their faith in pastoral serenity, participate in various religious services throughout the day, and on special occasions to witness and celebrate marriages and to pay their last respects to their dead and inter them in the cemetery nearby. Corporate defendant is taking the initial steps toward the construction of a race track and other facilities, about one-half mile from the church, for the purpose of racing motor vehicles on Sundays and holidays; the facilities are to be sufficient for the accommodation of thousands of racing fans and spectators. The sound of motors racing at high speed, the noise of squealing brakes and the yelling and screaming of the crowds will disrupt and render practically impossible the conduct of Sunday church services. Corporate defendant, if sufficiently solvent, could pay in damages the value of the church buildings and property. But to require the abandonment of Sunday services on the Sabbath, or the removal of the place of worship from the neighborhood and from the vicinity of the cemetery to a place remote from the homes of the church members, would amount to irreparable damage, an injury to which plaintiffs and those they represent should not in equity be required to submit.

Defendant contends that the only question raised by the complaint and the prayer for relief is whether the race track and related structures should be erected. It asserts that the matter of operation and any injury which might flow therefrom is not pertinent, that there is no operation and what the operation may be in the future is a mere apprehension. Defendant's analysis is too restricted. The erection of a structure or a building may be enjoined if its contemplated use must necessarily result in a nuisance. Causby v. High Penn Oil Co., supra; Edmunds v. Duff, supra; Pennsylvania Co. for Insurance on Lives and Granting Annuities v. Sun Co., supra. It is not logical to suppose that a race track for automobiles will not be used for racing automobiles. The complaint alleges that it has been publicly announced that the race track will be used "particularly on Sundays and holidays." Defendant's refined and technical construction of the complaint is rejected.

Defendant contends that the crucial allegations of the complaint are not based on any existent fact, refer to a purely imaginary situation, and are conclusions of the pleader and therefore should have been stricken from the complaint in compliance with defendants' motion. Broadway v. Town of Asheboro, 250 N.C. 232, 108 S.E.2d 441. Defendant refers to such allegations as the following: the "speedway will be used particularly on Sundays * * *"; "operation of a race track as threatened by defendants creates noise which can be heard for miles away"; "the noise from automobile engines and squealing tires will completely disrupt any service being held at Smyrna Church." We do not agree that such allegations are mere conclusions of the pleader. In a system of logic they would be conclusions; but, indeed, all statements of ultimate fact are conclusory in nature. They are allegations of fact susceptible of proof. Whether plaintiffs will be able to make satisfactory proof at the trial upon the merits, does not concern us here. We have said: "The reasons for preventing a prospective nuisance are at least as cogent as those for abating a present one. In the latter instance the courts act more readily because they are sure of their ground. The evil is visible. However, the call for protection against an apprehended injury, reasonably certain to befall, is as imperative as that for relief from one now felt. Nor is the complainant required to wait until some harm has been experienced or to show with absolute certainty it will occur. One requirement will make the remedy largely useless, the other impracticable." Causby v. High Penn Oil Co., supra.

The court below, after considering the allegations of the complaint and many affidavits, continued the restraining order until the final hearing on the merits. There was no request for findings of fact, and the court made none. It is, therefore, presumed for the purpose of the order made that the court found facts sufficient to support the order. Orkin Exterminating Co. of Raleigh v. Griffin, 258 N.C. 179, 128 S.E.2d 139. The court concluded that there "has been a showing by the plaintiff of equitable grounds for continuing the restraining order and of preserving the status quo." The affidavits are not in the record, but the verified complaint is sufficient to warrant the conclusion reached by the court. Pleaters, Inc. v. Kostakes, 259 N.C. 131, 129 S.E.2d 881.

We think that the court's order on the motion to strike should in one respect be modified. Plaintiffs allege in substance that the maintenance and operation of the race track would cast upon the highways adjacent to the church grounds and cemetery much additional traffic which would interfere with the customary use of the highway for funeral occasions, would be a hazard to persons driving to and from the church parking lot, and would endanger children playing on the church grounds. Such allegations should be stricken. Plaintiffs have, with respect to the highways, no property rights which would be involved in this action, and have no authority over and right to control the public highways. They are primarily ways of public travel and open alike to all. Smilie v. Taft Stadium Board of Control, supra.

Modified and affirmed.