1. ZONING — Regulations Permit — Act — Due Care — Courts — May Grant Relief — Nuisance. Even though zoning regulations permit an act to be done, and the act is being done with due care, the courts may grant relief where they find that the acts complained of constitute a nuisance.
Opinion by JUDGE COYTE.
This is an appeal from an order of the trial court granting an injunction prohibiting plaintiff in error, defendant below, from keeping horses in her backyard. The transcript of the testimony was not certified to this court, and therefore the findings made by the trial court are binding on this court. Howard v. Lester, 153 Colo. 199, 385 P.2d 121.
Defendant kept one to two horses in the backyard of her home. This is a residential area and the backyard of her property adjoins the backyards of the properties of plaintiffs. Plaintiffs initiated this suit, claiming that the keeping of the horses interfered with the peaceful enjoyment of their properties and constituted a nuisance. They requested that a permanent injunction be entered which would prohibit defendant from maintaining horses in her yard. At the conclusion of the hearing, the trial court found that the keeping of two horses was a permitted act under the applicable zoning regulations, and that the defendant was exercising all reasonable skill and care in maintaining the property where the animals were kept. However, the court found that flies were attracted to the general area by the horses and that noxious odors permeated the area; that the flies and noxious odors were the natural and uncontrollable results of keeping the horses in the area; and that by reason thereof there was substantial interference with plaintiffs' use and enjoyment of their properties which adjoined defendant's property, in that plaintiffs were prevented from using their backyards and patios, particularly during the warmer months. The trial court concluded that, even though there was no violation of the zoning regulations, the keeping of the horses constituted a nuisance, and thereupon entered an injunction prohibiting defendant from keeping horses in her backyard.
[1] The issue on appeal is whether a court has the authority to enjoin a private nuisance or nuisance in fact where the acts constituting the nuisance are in themselves lawful. Even though zoning regulations permit an act to be done, and the act is being done with due care, the courts may grant relief where they find that the acts complained of constitute a nuisance. To hold otherwise would be to state that the legislative body may license a nuisance. 39 Am. Jur. Nuisances § 205. See also Weltshe v. Graf, 323 Mass. 498, 82 N.E.2d 795; Sweet v. Campbell, 282 N.Y. 146, 25 N.E.2d 963.
The trial court made the specific finding that the keeping of these horses in this residential area was a nuisance in fact or constituted a private nuisance, and as such the court properly prohibited the continuation of the circumstances which constituted the nuisance. Seigle v. Bromley, 22 Colo. App. 189, 124 P. 191.
Judgment affirmed.
JUDGE DWYER and JUDGE ENOCH concur.