Appeal from decree of Court of Common Pleas of Bucks County, March T., 1963, No. 458, in case of Township of Bedminster v. Vargo Dragway, Inc. et al.
Claire G. Biehn, with him Biehn and Thatcher, for appellants.
Donald W. VanArtsdalen, with him VanArtsdalen, Pratt & Garthright, for appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Jones. Dissenting Opinion by Mr. Justice Cohen. Mr. Justice O'Brien joins in this dissent.
This appeal lies from a decree of the Court of Common Pleas of Bucks County permanently enjoining the operation of a drag strip racing track on the ground that the operation of the track constituted a nuisance in fact.
In March, 1958, Jacob Vargo and Mary Vargo, his wife (Vargos), owned a twenty-seven acre tract of land located in Bedminster Township, Bucks County. At that time the Vargos leased the premises to the Lehigh Valley Timing Association (Timing Association).*fn1 Under the lease agreement the Vargos were to construct a drag strip racing track on the premises and the Timing Association was to operate the track on a profit-sharing plan.*fn2
The drag strip racing track consists of a 60 foot wide black top level surface approximately 3,200 feet in length, the starting point of which is approximately 100 feet from Elephant Road, a public highway. Also located on the premises nearby are a large parking area owned by the Vargos, a pit area near the starting line, a refreshment stand and a grandstand with ground amplifiers for the playing of music and the announcement of the races and the speeds. The operation of the drag strip began in the Spring of 1960 and continued, with the exception of rainy days, every Sunday from April to November.*fn3
On the average Sunday approximately 130 to 140 cars compete in timed races of speed and acceleration with two cars competing at a time. Of these cars, 75% are stock cars equipped with mufflers; some of the remaining cars have no mufflers and some have modified or semi-modified mufflers. Some of the cars are "dragsters," i.e., custom-made for racing, some of which burn methyl alcohol for fuel. Speeds up to 196 miles per hour have been recorded, and some "dragsters" use parachutes to aid in stopping at the end of the track.
The track itself operates for racing only on Sundays beginning about 9:00 a.m. and continuing in operation until 5:00 or 5:30 p.m. with a loud-speaker operating
continually from about 10:30 a.m. until the races end. Practice sessions take place on Saturdays and prior to the start of the races on Sundays. Each race takes about five minutes, and, on the average Sunday, there are usually a minimum of 65 races. Attendance ...