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HOSTETTER v. STERNER'S GROCERY (09/30/57)

September 30, 1957

HOSTETTER
v.
STERNER'S GROCERY, INC., APPELLANT.



Appeal, No. 43, May T., 1957, from decree of Court of Common Pleas of York County, Aug. T., 1955, No. 14, in case of A. Roscoe Hostetter et al. v. Sterner's Grocery, Inc. Decree affirmed.

COUNSEL

Robert H. Griffith, with him Arthur Markowitz and Markowitz, Liverant, Rahauser & Kagen, for appellant.

William W. Hafer, for appellees.

Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.

Author: Jones

[ 390 Pa. Page 171]

OPINION BY MR. CHIEF JUSTICE JONES

This appeal is from a decree in equity "enjoining and restraining the defendant, Sterner's Grocery, Inc., its successors, agents and employees, from operating a slaughterhouse on the premises known and numbered as 455 Carlisle Street, in the Borough of Hanover, York County." The decree was based on the chancellor's findings that the defendant's operation of a slaughterhouse in a predominantly residential neighborhood was

[ 390 Pa. Page 172]

    a nuisance which adversely affected the health of the thirty plaintiffs (all of whom live within a two-block radius of the above-mentioned property), impaired the value of the plaintiffs' properties and interfered with their use and enjoyment thereof.

The appellant does not dispute the chancellor's findings and, on this appeal, raises but a single question of law, viz., whether the plaintiffs' right to injunctive relief for the abatement of a long-continued nuisance was barred by laches. On this point, the court held that "the defense of laches will not apply to defeat the enjoining of a continuing nuisance by a court of equity." The ruling finds support in the decisions of many jurisdictions (see 66 C.J.S., Nuisances, § 119, p. 893; 39 Am. Jur., Nuisances, § 165, p. 436; Annotation, 6 A.L.R. 1098) but, as here stated, may be too broad: see Harris v. Susquehanna Collieries Co., 304 Pa. 550, 558, 156 A. 159. However, we need not now concern ourselves with that question. The chancellor's findings, which are amply supported by the evidence and were confirmed by the court on exceptions, do not support a conclusion that the plaintiffs were guilty of laches.

The slaughtering operations, whereof the plaintiffs complain, had been conducted on the indicated premises by the defendant corporation and its predecessors, A. Franklin Sterner and his wife, uninterruptedly since 1940. Sterner and his wife first opened a small grocery store in their residence at the location described in 1938. In conjunction with the grocery business, they periodically killed and dressed poultry in a barn to the rear of their dwelling. In 1940, they expanded their slaughtering operations so as to include the killing and dressing of livestock. Three years later, they built a two-car, concrete-block garage (in place of the barn) where they thereafter slaughtered livestock

[ 390 Pa. Page 173]

    and poultry during the day and housed automobiles at night. Some two and a half years prior to the hearing in this case, the defendant company built an 18 X 8 X 14 foot addition to the garage. The building permits for these improvements indicated that the structure was to be used as ...


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