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Carroll v. Hurst

OPINION FILED FEBRUARY 4, 1982.

ROBERT CARROLL ET AL., PLAINTIFFS-APPELLANTS,

v.

LLOYD R. HURST, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Livingston County; the Hon. WILLIAM M. ROBERTS, Judge, presiding.

JUSTICE LONDRIGAN DELIVERED THE OPINION OF THE COURT:

Plaintiffs appeal from a decision of the trial court dismissing their petition for an injunction against the defendant, Lloyd Hurst. The trial judge impaneled an advisory jury which heard the evidence in the case and which answered, in favor of the defendant, six special interrogatories. The court adopted the findings of the advisory jury and entered a decree dismissing counts I and II of plaintiffs' complaint.

Plaintiffs filed a complaint on June 29, 1978, alleging that defendant's operation of a junkyard and salvage operation on his property (1) was not a valid nonconforming use under the Livingston County zoning ordinance, (2) that even if the use was a valid nonconforming use such status had been lost due to the expansion and alteration of the use by the defendant; and (3) the use of the property by the defendant as a junkyard constituted a private nuisance.

Defendant is the owner of an 11.56-acre tract located in Rooks Creek Township, Livingston County. The land in question is primarily agricultural and is located southwest of the city of Pontiac. Plaintiffs are owners of land which is either adjacent to or near the tract in question. None of the plaintiffs reside within less than one mile of the defendant's property.

The property was originally a portion of a tract owned by Clarence Law, Sr., who purchased the land in 1964. Mr. Law started a junk business on the site in 1962. He operated the junk business until 1968, when he entered into business with Percy Decker. Decker operated the Pontiac Scrap Yard. No active junking operation was in existence on the Rooks Creek property at this time; it was used as an area to store excess scrap. Percy Decker closed the Pontiac Scrap Yard in 1972 and gave the junk to his son, Bill. Clarence Law, Sr., gave his permission to Bill Decker to store junk on the Rooks Creek property. Decker hauled junk out to the property on a regular basis.

Defendant testified that, when he purchased the property in 1978, approximately 80 to 100 wrecked vehicles and used machines were present on the property. Some of the junk had been hauled from the Pontiac Scrap Yard after it closed in 1972. Between 1972 and 1978, Bill Decker made weekly trips to the property with loads of junk. Decker would haul small loads to the Rooks Creek site until he had accumulated enough junk to haul to the scrapyard in Peoria. He did not haul scrap out as quickly as he hauled it in, creating an ever-increasing inventory of scrap on the property.

Decker did not unload the junk in any set pattern. He put the scrap down wherever he wanted. He estimated that the junk covered a seven-acre area. Decker indicated that about one-half of the junk was located on the portion of the tract now owned by the defendant.

There was conflicting testimony about the number of vehicles present on the tract between 1972 and 1978 and the number present at the time of the hearing. Clarence Law, Sr., testified, in a somewhat confusing manner, that between 80 and 100 cars were present on the tract in 1972 and a similar number in 1978, although he thought "Bill was getting more in and not hauling as much out." He testified that he thought the defendant had 340 or 400 cars on the property at the time of the hearing.

Defendant testified that he moved approximately 100 cars to the property after he bought the property in 1978. He stated that about 200 cars were located on the property at the time of the hearing.

Plaintiffs also presented testimony on the alleged harmful effects on adjacent properties caused by the operation of the junkyard. Plaintiff Richard Roberts testified that the storage of vehicles adjacent to Pike Creek slows the flow of water from his property to the south. Roberts also testified that he had difficulty renting out a house on property he owned near the Hurst property. On cross-examination, Roberts admitted that the rental property had only been vacant since March of that year and that he had had several inquiries about the property in response to a newspaper ad. Roberts also complained about the noise coming from the Hurst property late at night.

Jake Bauman testified that he owned property adjacent to the tract in question. In March of 1979, a flood of exceptional size occurred in the area around Pike Creek. Bauman stated that he saw "three or four tires" that had been washed off defendant's property; however, none of the debris ended up on Mr. Bauman's land.

The trial judge submitted six special interrogatories to the jury. The jury answered all six interrogatories in a manner favorable to the defendant. The trial judge incorporated the jury's answers to the special interrogatories into a "judgment order" dated June 3, 1980.

The Livingston County zoning ordinance became effective on February 1, 1974. It provided:

"The lawful use of a building or premises, existing at the time of the effective date of these regulations, may be continued although such does not conform to all the provisions thereof, except as hereinafter ...


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