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MENGER v. PASS (05/21/51)

May 21, 1951

MENGER
v.
PASS, APPELLANT



Appeal, No. 18, May T., 1951, from decree of Court of Common Pleas of Dauphin County, 1950, in Equity, No. 1916, in case of John L. Menger et al. v. Charles M. Pass et ux. Decree reversed.

COUNSEL

Stanley G. Stroup, with him Joseph Nissley and Livengood & Nissley, for appellants.

Mark T. Milnor, with him Shelley & Reynolds, for appellees.

Before Drew, C.j., Stern, Stearne, Jones Bell, Ladner and Chidsey, JJ.

Author: Stearne

[ 367 Pa. Page 433]

OPINION BY MR. JUSTICE ALLEN M. STEARNE

The court below ruled that the erection and maintenance of an automobile tourist court -- also known as a motel, automobile inn or camp -- in a strictly residential area -- which was unzoned and unrestricted -- constituted a nuisance per se which was thereupon restrained. This appeal followed.

Charles M. Pass and Mary B., his wife, appellants, purchased on November 19, 1949, for $20,000, vacant land situate at the northeast corner of Front and Vaughn Streets in the City of Harrisburg. The premises extend northward along Front Street from Vaughn Street to the northern city line. There was no zoning ordinance or building restrictions prohibiting automobile courts. On August 10, 1950, a building permit was issued for the erection of the structure in question. The proposed structure is described by the chancellor as a: "... one-story construction... to contain manager's apartment, office, twenty-five bedrooms, bathrooms, heating plant, auxiliary rooms, and an open area in front for the parking of twenty-five automobiles." Also: "[It] is a one story brick building with picture windows, and for a tourist court is of attractive design. No liquor, beer, soft drinks or food is to

[ 367 Pa. Page 434]

    be sold there. During the early evening a neon sign will be lighted to attract customers.... It will be so constructed that large trucks cannot enter the parking space."

Front Street, in the City of Harrisburg, upon which the land fronts, is a multi-lane highway located along the Susquehanna River. No buildings are erected between it and the river. It is part of Pennsylvania Highway Route No. 22 and is heavily traveled with an official traffic count of approximately 13,600 vehicles per diem, many of which are heavy trucks. For a distance of six tenths of a mile north and nine tenths of a mile south of Vaughn Street, on Front Street, with the exception of one tourist home and a Naval Training Center, the entire area consists of single family dwellings and vacant lots. In the adjoining Susquehanna Township to the north, there is vacant land for a distance of 1000 feet except for one dwelling.The encroachment of commercial properties along Front Street has changed its former character and appearance. But even in the residential section east of Front Street are found a drug store, funeral home, schools, churches, neighborhood store or two, and one or two small commercial establishments. Further away, but in the general area, are found a cleaning establishment, gasoline station, plumber's office, junk yard, etc., and "[further] up Front Street... hamburger joints, gasoline stations, clubs, motor equipment etc."

While we have grave doubt whether the evidence supports the finding that this land is in a strictly or predominantly residential neighborhood, for the present purposes, we will regard the court's finding, to this effect, as properly supported.When owners of real estate in a residential area desire to preserve their neighborhood in an unchanged condition, they must secure appropriate zoning ordinances or be protected by building restrictions. In the absence of zoning

[ 367 Pa. Page 435]

    ordinances or restrictions any citizen may purchase real estate in the area and use it for any lawful purpose. This is his constitutional right. However, in so using the premises he must not create a nuisance, which affects health, safety or morals. In judicially determining whether a nuisance exists, many uses, by their very natures, incontrovertibly constitute nuisances in a residential district which will be so decreed as matter of law. The existence of other nuisances must be established by testimony as in other cases. This Court said in Essick et al. v. Shillam, Aplnt., et al., 347 Pa. 373, 32 A.2d 416, p. 377: "Because certain types of business, by the necessary incidents of their normal operation, deleteriously affect the health and comfort of the community, their establishment in residential districts has been held to constitute a nuisance as a matter of law. Public garages (Ladner v. Siegel, supra; Phillips et al. v. Donaldson, 269 Pa. 244), automobile service and filling stations (Carney et al. v. Penn Oil Co., 291 Pa. 371; Sprout v. Levinson et al., 298 Pa. 400; Long et al. v. Firestone T. & R. Co. et al., 303 Pa. 208; Perrin's Appeal, 305 Pa. 42; Thomas et al. v. Dougherty et al., 325 Pa. 525; Pennell et al. v. Kennedy et ux., 338 Pa. 285; Calvary Church v. Jones, and Burke v. Hollinger, both supra) are the most common illustrations of enterprises in this category. Others may be found listed in Pennsylvania Co., etc., v. Sun Co., supra, at page 411 [290 Pa. 404]." Among such listed nuisances per se are included fertilizer plants, livery stables, stock yards, amusement parks and saw mills.

The court below ruled as matter of law that a tourist court or inn, so located, is a nuisance per se. The reasons assigned for declaring such proposed structure and its operation to be a nuisance per se is stated in the adjudication: "Can a tourist court be operated in such an area so as not to be a nuisance? We think not. The purpose of the tourist court is to rent rooms by

[ 367 Pa. Page 436]

    the night to transients. There will be a parking place for approximately 25 cars. Nearly that number are likely to be there almost every night of the year. Some guests will come in the late afternoon, leave again for dinner and come back. Some will arrive in the early evening, but some undoubtedly will arrive later. The lights to attract them will be on until 11:30. If there are vacancies in the court, motorists will be received later. Some of those who stop are bound to leave early in the morning, some later. Car doors will bang, not only to permit passengers to leave and enter the vehicle, but also to remove the luggage, and often again for the forgotten package. Trunks too will bang. And a certain amount of loud talk during the unloading -- the 'don't forget' variety of calls from the cabin door to the parked car -- is inevitable."

Such assigned reason respecting the operation of a proposed automobile court or inn is obviously anticipatory, conjectural and the opinion of the chancellor. Such suggested or predicted results are neither inevitable nor likely. Upon the contrary, it is to the obvious business interest of experienced operators of automobile courts or inns to provide and preserve quiet and order. Tourists who seek a night's rest will avoid noisy and ill-conducted establishments. Should, however, such legal business be improperly conducted and became a nuisance in fact, its operation can be restrained.

It is a matter of judicial knowledge that the advent and extensive development of automobile travel in the United States has tremendously changed and affected the habits of automobile travelers. It necessitated the building and maintaining of arterial super and multilane highways which have interlaced the entire country. Large cities, and ...


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