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KOHR v. WEBER (06/30/60)

June 30, 1960

KOHR
v.
WEBER, APPELLANT.



Appeal, No. 211, Jan. T., 1960, from decree of Court of Common Pleas of Lancaster County, No. 11 Equity Docket, page 330, in case of Ralph L. Kohr et al. v. Henry S. Weber, Jr. et al. Decree affirmed. September 30, 1960, reargument ordered limited to question of damages. Prior order confirmed.

COUNSEL

William Fearen, with him Nissley, Cleckner & Fearen, for appellants.

F. Lyman Windolph, with him Richard M. Martin, and Windolph, Burkholder & Hartman, for appellees.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, and Eagen,, JJ. Reargued November 17, 1960. Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.

Author: Musmanno

[ 402 Pa. Page 64]

OPINION BY MR. JUSTICE MUSMANNO.

Henry S. Weber, Jr., owns in Manor Township, Lancaster County, a piece of land equipped with facilities for an airport and a race track, the latter consisting of a macadam strip approximately 3,000 feet long and wide enough to accommodate two racing automobiles or four motorcycles. The track is known as a "drag strip". On Saturday nights, as well as on Fridays when a holiday falls on either Friday or Saturday, races are run on the "drag strip" from 6 p.m., until midnight. Occasionally the races are in operation as late as 2 a.m. Sunday. The loud noises, glaring illumination, and swirling dust clouds which inevitably accompany an operation of this character caused such annoyance and discomfort to residents of the area that sixteen of them applied to the Court of Common Pleas of Lancaster County for an injunction against Weber and the operator of the race track, Garden Spot Airpark, Inc.

[ 402 Pa. Page 65]

Two of the plaintiffs are Ralph L. Kohr and Elizabeth B. Kohr who own a ranch house in the neighborhood of the race track. The ranch house contained some 1100 chinchillas valued from $50,000 to $60,000. The Kohrs averred that the chinchillas suffered from the noises emanating from the race track. Being sensitive animals they became exceedingly nervous in the presence of violent sound and chewed at their fur in some inexplicable attitude of defense. Once a chinchilla resorts to fur-chewing, the habit becomes unbreakable and, as a consequence, the animal becomes worthless for breeding and pelting purposes, and must be destroyed. The Kohrs asked for money damages for the chinchillas they lost.

After answer duly filed, the cause came on for a hearing, and the chancellor granted the injunction prayed for. In addition, damages were awarded to the Kohrs in the amount of $9,361.

Henry S. Weber, Jr., and Garden Spot Airpark, Inc. have appealed. They argue that the "drag strip" did not constitute an unreasonable interference with the enjoyment of residential property because the area surrounding the "drag strip" is principally agricultural, that there are other commercial enterprises in the immediate vicinity, that the races are held only one evening a week during less than half a year, and that the defendants have $118,000 invested in a lawful business which is not a nuisance per se.

The chancellor did not find the drag strip operation to be a nuisance per se, but a nuisance in fact. The record amply justifies this conclusion. Even assuming that the involved area is principally agricultural, this does not take away from the landowner his right to the natural use and enjoyment of his property. A person who buys residential property in the country because he expects to find the peace and serenity missing in

[ 402 Pa. Page 66]

    urban centers may have a greater claim than the urbanite to protection from abnormal noises which disturb his rest, ruin his rest, and deprive him of the tranquillity ...


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