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Brandes v. Mitterling

Supreme Court of Arizona

July 19, 1948

BRANDES et al.
v.
MITTERLING et al

Appeal from Superior Court, Pima County; C. C. Faires, Judge.

Suit by Raphael Brandes and Elsie Brandes, his wife, Brandes School at Tucson, Hayward N. Hoyt and Lottie D. Hoyt, his wife, and Solana Land Company against Eben E. Mitterling and Gina Mitterling, his wife, and Skyriders, Incorporated, to enjoin the operation of an airport as a nuisance. Judgment for defendants and plaintiffs appeal.

Judgment reversed and cause remanded with directions.

James Elliott Dunseath, of Tucson, for appellants.

John W. Ross, of Tucson, for appellees.

Udall, Superior Judge. Stanford, C. J., and Udall, J., concurring.Note: Justice Arthur T. LaPRADE having disqualified himself, the Honorable Don T. UDALL, Judge of the Superior Court of Navojo County, was called to sit in his stead.

OPINION

Udall, Superior Judge.

[67 Ariz. 350] The plaintiffs in the lower court, hereinafter called the appellants, are the individual [67 Ariz. 351] owners of certain improved and unimproved real property located on East Broadway, Tucson, Arizona, which they acquired prior to the year 1945. The total acreage owned by appellants is approximately 140 acres and, with improvements, is valued at approximately $ 250,000. During May and September, 1945, the defendants in the lower court, hereinafter called the appellees, acquired approximately 28 acres of land which is surrounded on the

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east, south and west by the lands owned by appellants.

The same year, the appellees built a hangar and constructed dirt landing strips on their tract of land. One of the strips runs in a northwest-southeast direction and is approximately 2700 feet long and the north-south strip runs directly north of the hangar and is approximately 2400 feet long. The first strip above mentioned terminates on the south at Broadway which is paralleled by a power line approximately 30 feet high and a telephone line approximately 20 feet high. The two air strips merge near the center of the field where they broaden into one wide strip. There are no buildings or obstructions, other than a low fence, where the strip terminates on the north end of appellees' property. Appellees' airfield was inspected by and received the unwritten approval of the Civil Aeronautics Administration. The Veterans Administration also approved it for the training of ex-service men to fly under Federal Law known as the GI Bill of Rights.

The appellants, Raphael Brandes and Elsie Brandes, his wife, and Brandes School at Tucson, a corporation, are the owners and operators of a resident boarding school located on about ten acres bordering the east boundary of the land owned by the appellees. The school has been in operation since the year 1940. It has an average of sixty-five students, male and female, between the ages of 6 and 16 years, and employs approximately ten instructors. The school building, 2 stories high, is located 145 feet east of the south end of the long air strip, and a short distance northeast of the school building on the Brandes property is located a water tank 60 feet high used by the school

The appellants, Hayward N. Hoyt and Lottie D. Hoyt, are the owners of about 75 acres of land which borders on the south boundary of the land owned by appellees, and is separated from said appellees' land by that street known as Broadway. The Hoyts acquired this property during the years of 1926 and 1931 and immediately thereafter improved the same by erecting a very substantial private residence, which lies approximately 400 yards south of Broadway and appellees' airport. The appellant, Solana Land Company, a corporation, is the owner of approximately 56 acres of unimproved land lying immediately west of the airport.

The appellants assert that they have been injured by various unlawful acts resulting from the operation of the airport. They [67 Ariz. 352] contend that it constitutes a nuisance which may be abated only by closing it. The acts charged to be unlawful and the elements of the nuisance may be summarized as follows: dust from the airport enters the school buildings, settling on furniture, beds and floors, pollutes the air and causes inconvenience to the students and instructors; noise from the airport makes it difficult to carry on conversations, interrupts classes, and distracts the minds of the students and the students cannot rest during the regularly prescribed and scheduled rest periods; noise and dust from the airport have made some of the students ill, and hospitalized one of the appellants; airplanes flying to and away from the airfield fly over the land of appellants at an average altitude of approximately 50 feet and endanger both life and property; repeated low flights over appellants' homes and properties, causing loud and disturbing noises, frightening appellants, their families, servants, and the students attending Brandes School; depreciation in value of adjoining properties by reason of the proximity of the airport.

An injunction is prayed for to terminate the use of the field as an airport and to forbid the continuance of the various alleged acts causing injury. Appellees deny that a nuisance exists and deny the acts complained of are unlawful.

It is the uncontroverted evidence that Skyriders, Inc., also known as the Wagon Wheel Airport, owned by appellees, did considerable business during the summer months of 1946, and there was great activity at this airfield up to date of trial in lower court which occurred in November, 1946. It had as high as 16 planes on the field, all single-engine planes ranging from 65 to 225 horsepower, 7 of which were in use for training students and student pilots. At time of trial, there were approximately ...


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