This is an appeal by the defendant from a judgment which, by injunction, regulated the use and operation of its truck terminal, which is on the westerly side of route 5 in an industrial zone in East Windsor.
The finding is not subject to correction in any respect which would be of material advantage to the defendant. The terminal was constructed and has been in operation since July, 1964. The use is one permitted in the industrial zone. The plaintiffs, Victoria and Maurice O'Neill, own and occupy a residence on premises immediately north of the terminal. They purchased the property in June, 1962. Although the residential use of premises within the industrial zone has not been permitted since 1960, the plaintiffs' use of their property is a nonconforming one since the house was constructed prior to that date. The plaintiffs knew that their property was in an industrial zone when they purchased it.
The complaint alleged that the defendant's operation of its trucking terminal constituted a nuisance which injured, disturbed and annoyed the plaintiffs in the enjoyment of their property. By way of relief they claimed damages, punitive damages, attorney's fee and an injunction forbidding the defendant to create any sound or light on its terminal which would injure, disturb or annoy them.
In a lengthy finding, the court described the details of the defendant's operation of its terminal. The defendant is engaged in both long-distance and short-distance hauling of merchandise. Fifteen trucks, of which eleven are tractor-trailers, are used for short-distance hauls, and twenty-five to thirty long-haul tractor-trailers come in from the South in the course of a week. Pickups are made during
The court also found that the plaintiffs are normal persons of ordinary habits and sensibilities, that the defendant's terminal, as operated, has interfered with their sleep and required Mrs. O'Neill to go to her daughter's home to sleep one or two nights a week in order to get relief from the noise of the defendant's operation, that as a result of loss of sleep Mr. O'Neill has been irritable and unable properly to conduct his business and that the O'Neills have been unable to use their screened patio, have been restricted in the use of their swimming pool and have been annoyed and disturbed in the enjoyment of their home. The court expressly found that the sounds of loud shouting, radios, truck units with motors running on the north side of the defendant's open terminal with the terminal doors open, moving materials and rolling or sliding dollies after 11 o'clock at night are unreasonable.
On the basis of these facts, the court concluded that the noises, disturbances and lights emanating from the terminal from 11 p.m. to 6 a.m. are beyond what a normal person of ordinary habits and sensibilities can endure, that the lights on the southerly side of the defendant's property and the operation of the trucking terminal on its northerly side between 11 p.m. and 6 a.m. constitute nuisances, that the conduct of the defendant has not been wilful or malicious but that, as to the plaintiffs, the conduct of the defendant's business is an abatable nuisance.
By way of relief the court awarded damages of
We have had recent occasion to discuss the law of nuisance and the general power of equity to afford relief by injunction and damages for injury caused by a nuisance created by the unreasonable conduct on one's own property of an otherwise lawful activity. See Nair v. Thaw, 156 Conn. 445, 451, 242 A.2d 757; Krulikowski v. Polycast Corporation, 153 Conn. 661, 220 A.2d 444, and cases cited therein. As we repeated in the Nair case, supra, 452, "`It is the duty of every person to make a reasonable use of his own property so as to occasion no unnecessary damage or annoyance to his neighbor. If the use is unreasonable the law will hold him responsible.' Nailor v. C. W. Blakeslee & Sons, Inc., 117 Conn. 241, 245, 167 A. 548; Marchitto v. West Haven, 150 Conn. 432, 437, 190 A.2d 597. `Determining unreasonableness is essentially a weighing process, involving a comparative evaluation of conflicting interests
"There is nothing in the record which would justify us in holding that the injunction as issued in this case transcends the proper limits of the trial court's discretion" or, on the question of damages, "`that the amount which the trial court has fixed is not reasonable compensation.'" Krulikowski v. Polycast Corporation, supra, 669, 670 (quoting from Nailor v. C. W. Blakeslee & Sons, Inc., 117 Conn. 244,247,167 A. 548).
There is no error.
In this opinion the other judges concurred.