Green v. Castle Concrete Co.

Civil No. 62488 (Colo. Dist. Ct. May 7, 1971)

The operation of limestone quarries in the Colorado Rocky Mountains in such a way as to create shock waves annoying to nearby residents, to raise large quantities of dust, and to do considerable aesthetic damage to those mountains is a public and a private nuisance. Such operation is enjoined regardless of the facts that there is no demonstrable pecuniary loss and that the quarries are a proper use of the land as zoned. The public interest in the natural beauty of the mountains has been balanced against other factors in the determination of the appropriateness of the injunction.

Counsel for Plaintiffs
Howard Morrison
Bennett, Heinicke, Morrison & Hollaway
P.O. Box 2168
Colorado Springs, Colo.

Counsel for Defendant
Paul Evans
Evans, Peterson, Torbet & Briggs
Mining Exchange Bldg.
Colorado Springs, Colo.

[2 ELR 20347]

Gibson. J.

This matter duly came on for hearing before the court without a jury on February 8, 1971.The plaintiffs appeared by Howard Morrison, Esquire, their attorney. Defendant appeared by Evans, Peterson and Torbet, its attorneys. Evidence, oral, documentary and photographic, was received on the following dates, namely: February 8, 9, 10, 11, 16, 17, 18, 23, 24, 25, 26, March 1 and 2, 1971.The court shortly thereafter viewed the site of the quarry involved and of the Queen's Quarry. An Amicus Curiae brief by Springs Area Beautiful Association and the Sierra Club was filed March 8, 1971, without leave of court but consent to its filing was given by the court on April 7, 1971, pursuant to motion and notice. The court on April 5, 1971, entered its order reopening the case for the sole purpose of receiving evidence concerning zoning and set the hearing for April 14, 1971, on which date additional evidence was taken on this matter. The court having considered the evidence, the briefs, having consulted the law and being fully advised in the premises

DOTH FIND:

1. This claim was commenced on June 18, 1970, and was tried on the Second Amended Complaint.The Second Amended Complaint charges the defendant is about to commit a nuisance by the operation of a quarry for rock which it is in the process of opening. The nuisance is caused by blasting, the shaking and tremoring of homes of plaintiffs by the blasting and by dust and small particles, which will be deposited in the homes of plaintiffs and the loading of the air with residue from the quarry. It is further averred that the plaintiffs are entitled to an aesthetic view of the front range of the Rocky Mountains and the operation will [2 ELR 20348] jeopardize their right to a decent environment, and that they are entitled to all rights granted to people by the Ninth Amendment Article to the Constitution of the United States of America. The Complaint prays that the defendant be permanently enjoined from its quarry operation in the Williams Canyon Quarry.

The Answer of the defendant admits the opening of the quarry and its intent to pursue the operation, deniesthe nuisance averments of plaintiffs, avers the quarry operations were begun in the area forty years ago, that the defendant owns the land and the same is properly zoned for mining.

The claim came to trial on these issues.

2. The court takes judicial notice of the following facts contained in this paragraph. The term "front range" is a loosely applied term to several ranges of the Rocky Mountains rising from the plains of Colorado. These ranges have no foothills. The east face of these ranges are visible for miles to the east by those persons approaching the Rocky Mountains from the east. The Front Range contains two of the great mountains of Colorado — they are Longs Peak and Pikes Peak. The great majority of the people of the State of Colorado reside close to and within sight of the Front Range. A chain of cities, including Boulder, Denver, Fort Collins, Loveland, Greeley, Colorado Springs and Pueblo, lie just east of this range. The Colorado Rocky Mountains are a magnet attracting many tourists each year. The Front Range rising as it does abruptly from the great plains is a unique sight. It is in this range that the inhabitants of Colorado's cities play and go to for recreation and which attracts many of our tourists. What happens in this Front Range is of considerable importance to our people, both economically and otherwise.

The portion of the Front Range involved in this claim is the southern portion thereof known as the Rampart Range commencing at Devil's Head south of Denver and ending in the Ute Pass Fault where it meets the Pike Peak Massif. It has an almost uniform height of 9,000 feet. The City of Colorado Springs lies immediately to the east of this vicinity and the City of Manitou Springs lies west of Colorado Springs and south of the land in question. The population of the City of Colorado Springs according to the census was 135,060 in 1970, 70,194 in 1960 and 45,472 in 1950. The population of Manitou Springs in 1970 was 4,171 and in 1960 was 3,626.The population of El Paso County, in which the two cities are located, in 1970 was 235,972. The Chamber of Commerce of the City of Colorado Springs estimates that the number of annual visitors to the Pikes Peak Region in 1970, most of whom were tourists, were 3,080,000 and they spent $85,470,000.00. In addition, those attending conventions were 77,350 in number and spent $9,282,000.00. The tourist industry is of immense importance to the area involved. The homes in Crystal Hills, a portion of the City of Manitou Springs, are new in construction and are moderately expensive. A severe drought has not occurred in this region since 1966.

3. In the Rampart Range near Colorado Springs there occurs outcroppings of limestone commencing near the City of Manitou Springs almost at its northern boundary at Williams Canyon. This limestone proceeds north and east having an almost right angle in it (see Plaintiffs' Exhibit F-13, a photographic slide) for approximately three miles. The limestone occupies a part of the Fountain formation. It is interpersed by two canyons, Williams and Queens, which exposes to view on either side thereof the strata of limestones as now existing. There is a smaller drainage and canyon known as Black Canyon between the two larger canyons. The drainage of Williams Canyon flows through a part of the business section of the City of Manitou Springs where it joins Fountain Creek. The drainage of Black Canyon likewise flows through a portion of Manitou Springs into Fountain Creek. The limestone formation begins on the west side of Williams Canyon approximately a quarter of a mile therefrom and runs to Queens Canyon and for approximately one-third of a mile on the north side of Queens Canyon. On the west side of Williams Canyon there is a fair sized cave known as the Cave of the Winds, privately operated, and one of the better tourist attractions of the region, visited by many of the tourists of the region. The limestone formations are mostly found in Sections 32, 29, 28 and 21 of Township 13, South, Range 67 West of the 6th Principal Meridian.

4. The defendants own in fee approximately 160 acres of the limestone formation composed of two tracts described as the East Half of the Northwest Quarter and the Northwest Quarter of the Northwest Quarter, the 120 acre tract, and the Southwest Quarter of the Southwest Quarter, the 40 acre tract, all in Section 32, Township 13, South, Range 67 West of the 6th Principal Meridian. Defendant owns the mineral interests but not the surface of the North Half of the Northeast Quarter of Section 32, the Southeast Quarter of Section 29, the South Half of the Northeast Quarter of Section 29, all in said township, being the 320 acre tract. Defendant also owns the mineral rights in adjoining 40 acres and 20 acres described as the Southwest Quarter of the Northwest Quarter and the West Half of the Southeast Quarter of the Northwest Quarter of Section 28 in said township. The Rampart Range Road, a scenic road used frequently by tourists, traverses a portion of the 20 acre and the 320 acre tract. These properties come within 2,000 feet of Queens Canyon.

5. A quarry on the 120 acres, called in this record the Snyder Quarry, was opened about 1900. It was worked in a desultory fashion from time to time. The last work occurred probably in 1931. The road to it prior to the building of the present road by defendant was called by one witness a "jeep" road. The court visited the property. The workings were not extensive. At most the present size of the worked area of the Snyder Quarry is only three or four acres in extent. The height of the worked faces are not greater than 30 feet. This includes the space used by the defendant in its opening of the quarry in 1970.

6. There is exposed in Williams Canyon strata of limestone resting on a stratum of red sandstone of approximately 200 feet. Some core drilling, about six in number, in the vicinity of the Snyder Quarry indicates this depth of limestone exists close to Williams Canyon. Most of the acreage has not been core drilled. There are ridges and little valleys or gullies, apparently the result of erosion, throughout the property. The limestone does not exist throughout Williams Canyon. It ceases in the upper part of it.

The defendant owns a tract of some 100 acres on the north side of Queens Canyon and it operates a limestone quarry known as the Queens Canyon Quarry or the Queens Quarry. It does not appear in the record, however, when the court viewed the quarry with Mr. Charles Batley, the quarry manager of the defendant, he stated the limestone in the Queens Quarry was 100 feet in depth, the upper part thereof which apparently contained the high calcium lime having eroded away. The Queens Canyon Quarry is pictured on Plaintiffs' Exhibit D quite prominently. Six million tons of rock have been quarried at Queens.There is two million more tons to be produced.

There is from six to eight miles distant north of the Queens Canyon Quarry another outcropping of limestone on the east face of the Ramport Range just above the main building sites of the Air Force Academy. This belongs to the Golden Cycle Corporation. A quarry exists there known in this record as the Lennox-Breed Quarry. It is of about twelve acres. It has an appearance similar to that of the Queens Quarry.

7. Plaintiffs, Gustafson and Andreason, each own a lot on which is constructed a home in Crystal Hills, a subdivision of the City of Manitou Springs. Defendant's Exhibit No. 7, an aerial photograph, shows at least 140 homes on the high ridges in this subdivision. The subdivision is approximately two miles from the Snyder Quarry. Plaintiffs, Green and Busey, own lots on which homes are built in the City of Manitou Springs a little closer to the Snyder Quarry across the valley of the Fountain Creek from Crystal Hills. Plaintiff, Willie, owns a residence and lot on the sidehill within a mile of the Snyder Quarry. Plaintiffs, Burgess, own a residential property in the City of Colorado Springs several miles from the quarry.

8. The exact date on which the defendant opened the Snyder Quarry does not appear in the evidence. Blasts from this quarry were heard weekly, however, in April and May, 1970. The defendant's employees verify the fact that there were blasts during that period at the quarry but testify no blasting has occurred since that time. There was set up at the site of the Snyder Quarry a portable crusher. At the time the court visited the quarry there were several stockpiles of crushed stone there. The testimony was that there were two or three hundred tons of such materials [2 ELR 20349] present. The court finds that the quarry was opened by defendant in the early spring of 1970, a road to the site having first been constructed.

9. Crystal Hills lies at an elevation of over 6,300 feet to 6,400 feet. The site of the Snyder Quarry is approximately 7,200 feet. The Snyder Quarry is quite visible from Crystal Hills. The prevailing winds on the quarry site is to the southeast directly towards Crystal Hills. There are no ridges or other obstructions to sight, wind or sound between the quarry and Crystal Hills. Several of the women who make their homes in Crystal Hills testified and from their testimony the court finds: They heard blasts coming from the Snyder Quarry direction and saw columns of dust rising from the quarry. The blasts were of different intensities. Several were severe. The blasts shook the houses, rattled the windows, pictures on the walls of the homes were moved out of place by one-half to three-quarters of an inch, doors shook, chandeliers swayed, the glass in them clinked and dishes were moved toward the front of the cupboards.Children ran outside and were crying. There was a feeling the foundations of a home had been walloped. There was a particularly hard blast on April 10, 1970. The effect upon these housewives was annoying, disturbing and frightening. The blasts made them apprehensive. All of these witnesses were normal individuals and not unduly sensitive. They were not afflicted with nervousness or with mental diseases. However, one had lived on the San Andreas Fault in California and had moved from there to Colorado after there occurred in 1963 an earthquake. She was annoyed with the shaking of her home in Crystal Hills.

Plaintiff, Robert Andreason, had inspected the foundation of his home a week or ten days before the blast of April 10, 1970. Soon after the blast of April 10, 1970, he inspected the foundation of his home above ground and discovered innumerable cracks first thought to be spider webs in his foundation. The cracks were not visible a week or ten days before. He called the defendant. In response an adjustor for the defendant's insurance company called and convinced Andreason that the cracks were not caused by the blast. There were no experts called on this subject. Although the court does not make a finding on the subject there are indications that the blast did cause this crack of the foundation of this house.

The homes erected in Crystal Hills were erected before the Snyder Quarry was opened by defendant. Overall, the plaintiffs and others owning these homes have been subjected to annoyances due to the blasting, and the defendant has unreasonably interfered with the use and enjoyment of the dwellings owned by the plaintiffs and others in Crystal Hills. The evidence further indicates that the operation of the quarry will last at least 16 and perhaps 60 years in the future.

The acts of defendant set forth in this paragraph affects the plaintiffs, Andreason and Gustafson, and other persons who own homes in the Crystal Hills area in the enjoyment of their rights as homeowners and property owners, which rights are not common to the public. These acts constitute a private nuisance. Because of the existence of ridges between the Snyder Quarry and ther factors the general public is not affected by the blasting. The court further finds that the blasting effects will continue if the quarry be operated as a pit or sidehill quarry.

10. Evidence concerning the ecology of the premises on which it is proposed to operate the Snyder Quarry was received. The court permitted the plaintiff considerable latitude in presenting evidence on this subject since it is a new science and knowledge concerning the same is not widespread. Photographic slides projected upon a screen were received in evidence. Among these were examples of ecosystems elsewhere shown to illustrate those ecosystems occurring on the Snyder Quarry and vicinity. From the total evidence submitted the court finds that the chief ecosystems occurring on the subject property is the Pinon-Juniper Woodland ecosystem, which occurs in conjunction with a Brushland ecosystem, a Grasslands ecosystem and another. The Pinion-Juniper Woodland ecosystem is composed mostly of Pinion Pine trees and one and two seeded Juniper trees interspersed with grass and other vegetation. The Brushlands ecosystem is composed chiefly of Mountain Mahogany, Gambel Oak, both schrubs, interspersed with grass and other vegetation. The Grasslands ecosystem is composed of grasses mostly. These ecosystems have one common denominator. They exist in an arid country and in a climate which affords a short growing system. When disturbed they take long periods of time in which to succeed themselves. Succession involves changes occurring through time with respect to an ecosystem until it stabilizes. If an existing ecosystem is destroyed that would be the beginning of succession. It would take the subject land centuries to reach its present ecosystem which is now mature and stabilized. One witness had determined the ages and growth rate of Pinion Pine by boring holes about one foot from above the ground in 30 trees. The oldest tree tested was 107 years of age and it was not tall. The growth rate was determined to be two inches in height a year. None of the Junipers were aged. The rocky soil on the subject property is about five inches deep and lies on top of several feet of badly cracked limestone, which in turn lies on top of a solid stratum of limestone. The growth of the Pinon Pines and Junipers at the very site of the present Snyder Quarry is luxuriant and thick. The growth at the immediate quarry site is better than elsewhere. However, the overall growth on the land is pleasant to the eye and furnishes a good back-drop to the mountains in the vicinity.

The property bearing the limestone is a part of approximately 1,500 acres which are the most northeasterly extension of the Pinon-Juniper Woodland ecosystem, which occurs from Penrose, Colorado, south to the Mexican border. It is isolated from the main Pinon-Juniper Woodland ecosystem. Of this acreage some 200 acres are underlaid by limestone.

11. Some of the evidence concerning ecology bore upon the subject of the unusual number of birds which occur on the isolated Pinon-Juniper Woodland ecosystem involved here. Most of the birds are migratory and many of them insect eating. It happens because of the ecotones or transition areas between two adjacent ecological communities (ecosystems) which are usually highly productive of animal life. The court ruled during the trial and now finds that this evidence was not received as a basis for an injunction but only as general evidence concerning the circumstances with which the court is dealing.The court does not believe that such evidence concerning animal life gives rise to grounds for an injunction.

12. There exists two sidehill quarries in the immediate vicinity of Colorado Springs. The Queens Canyon Quarry operated by defendants mars the mountainside of the Rampart Range and the immediate vicinity of the Garden of the Gods, a major tourist attraction of the region. It is visible from a great portion of the City of Colorado Springs. It is visible from a great portion of the City of Colorado Springs. It is conspicuous to the north as one approaches the Pikes Peak Region and can be seen many miles to the east. The Lennox-Breed Quarry is several miles to the north and it mars the mountainside of the Rampart Range at its location. The plaintiff intends to quarry the Snyder Quarry by an open put using the bench and face method. From a topographical map is is apparent that the elevation rise in the 120 acres owned in fee by the defendant is over 400 feet and on the 320 acres of mineral rights property is over 600 feet. A sidehill operation would be feasible here. Apparently a sidehill operation is a more economical mining method. Whether the operation be by a pit or sidehill quarry it will result in the removal of the ground cover over the entire acreage owned in fee and could result in the same type of operation on the property in which mineral interests only are owned. The result would be the further marring on the east side of the Rampart Range. As one of the witnesses for the defendant put it, the Snyder Quarry would be no beauty spot. The annual denuding of soil, that is, acreage stripped, was estimated by the various witnesses to be from three acres to 16 acres. The court finds the latter acreage to be the more likely. The Snyder Quarry is quite close to the Queens Quarry and would tend to merge with it. The Snyder Quarry is now visible for some distance and would be quite visible from the east and north when more fully developed. Should the acreage in which the defendant has mineral rights at this time be mined so that the ground cover also is stripped the operation would virtually merge with the Queens Quarry.

13. The gradual and systematic stripping away of the ground cover of the proposed quarry operation could have only a considerable adverse affect on the tourist industry of the region. Its effect upon the City of Manitou Springs would be greater than elsewhere for this city depends upon the tourist trade for its economic base, its reason for existence. The effect on the economic [2 ELR 20350] base of this city would adversely affect the values of the homes of those plaintiffs who reside in the City of Manitou Springs and they would suffer a loss not common to all of the people of the region.

The evidence indicates that the quality of the immediate environment would affect the economic base of the entire region not only through the tourist industry but otherwise. It is indicated that the future of the community is shifting from a military market, which arises because of the necessity to house those in the community involuntarily, to corporate and research headquarters. These people are interested in a quality environment and climate, clean air and a pleasant surroundings. The denuding of the hillsides in the immediate vicinity of Pikes Peak and the Garden of the Gods and other beauty spots of this region is not conducive to the attracting of such people and of tourists. Indeed, it would certainly put a brake on such activities. In fact, industrial uses is the proposed employment of land near the Queens Quarry.

The homes of the plaintiffs and the economy of this region were established long before the defendant conceived the plan to quarry the entire limestone bearing hillsides involved.

The court finds that the facts and findings contained in this and the 12th paragraph hereof affects the public generally and is a public nuisance and is at the same time a private nuisance as regards those plaintiffs who live in Manitou Springs.

14. Evidence concerning dust was received in evidence. From this evidence and from the visits of the court to the Queens and Snyder Quarries it was quite apparent that a large quantity of dust would be involved. On both quarries were large stockpiles of limestone ground very fine, some as fine ad the finest flour.Such finely ground limestone and other particles abounded in the vicinity of the quarried land. High winds which are common here are certain to pick up and blow some of this material. The prevailing winds are from the Snyder Quarry to Crystal Hills and the homes there erected. The fine grinding of limestone is done by rock crushing machinery used in these quarries.The ones at Queens Quarry are quite extensive in size and resemble a manufacturing establishment. The ones used at the Snyder Quarry were portable and were not present at the visual inspection by the court. Some of the dust is created by the blasting and by the grinding, however, the projection of dust particles into the air by the grinding is kept to a minimum by the use of water.

15. Knowledge concerning dust is continually expanding. The small dust particles are known as particulates. Only during the past year has it been discovered that particulates of 10 microns and less in size do not precipitate or fall out of the air by gravity. These small particulates are not visible to the human eye. They must be washed out of the air by rainfall or other precipitation. These particulates also are not effectively removed by the filtering mechanisms in the human body. Those below five microns in size are breathed into the lungs where some of them remain for life. In air basins like the one in Colorado Springs and vicinity where is present also gaseous pollutions, such as, the oxides of nitrogen and sulphur, these particulates have affinity for these gaseous pollutants and will carry the same into the lungs with the particulates. Colorado has twice the national average of the incidence of emphysema with one of the mountain valleys and small towns where there is mining and quarrying. The least that can be said of the situation it is not beneficial to human life.

The prevailing winds would blow such particulates directly towards the homes in Crystal Hills and the other homes between there and the Snyder Quarry. These people would be subjected to a much higher concentration of particulates in the air to be breathed than others in the region. Larger particulates would settle upon their property. The use of the Snyder Quarry in the manner suggested and in the manner heretofore used is unreasonable as regards these plaintiffs. The court finds that these facts related in this paragraph and Paragraph 14 create a private nuisance.

16. Defendant produced evidence concerning a wall shot at the Snyder Quarry on January 21, 1971. Thirty-three holes of 30 foot depth placed eight feet apart in a diamond shape were drilled. One to two sticks of powder were placed in each hole and nitrates were placed on top of the sticks up to five feet of the top. The holes were tamped with dirt and exploded by mini-second delays by electric blasting caps. The weight of the explosives used was about 1800 pounds, a little under the usual wall shot. The shots were monitored. The experts testified the vibrations were minimal and the concussions not great. However, the blast was made at a time when the wind was from Crystal Hills to the Snyder Quarry. The prevailing winds are the opposite. Wind velocity is a factor in the concussion effect.

A Second blast was set off on January 21, 1971. Sixty-six shots were exploded. One-third of a stick of powder was placed in 66 different holes bored in large particles of limestone too large to place in the crusher. These are secondary shots and are noisier than the wall shots. The powder was tamped with dirt. This blast rattled windows in Crystal Hills.

Defendant intends to use a heavy metal ball and a crane to lift it to crush these large particles in the future. This will eliminate the more noisier secondary blast.

The court finds that the annoying blasts would continue if the defendant uses the open pit or sidehill quarry method. The shot of January 21, 1971, failed to demonstrate that this would not be the case. Despite the direction of the wind and the clear day adverse effects were noted.

17. Succession can be accelerated. In the Queens Quarry about 10 acres, hereafter in this paragraph called the reclaimed land, have been terraced and seeded with various vegetation. The sandstone which underlaid the limestone had been picked up and spoils have been spread over the mined out reclaimed property.The slope of the areas is 10 to 15 degrees. Twenty percent of this area has sufficient spoils to support a 60 to 80 percent growth. Spoils are the remains of the top soil and other overburden removed and the fines and other debris left over after the quarrying activities have ceased.When fertilized the spoils make a fair soil in which to grow vegetation.Forty percent of the reclaimed area has poor depth of spoils and 40 percent has no spoils. The reclaimed area has no evidence of washing but is subject to erosion.The reclaimed area has been planted with pubescent wheat grasses, side oats, gramma grass, sweet clover and other grasses. Four foot Ponderosa and Pinon Pines were planted. Few of these survived. Potted Ponderosa Pines about four inches high have been planted and better success is being had with them. The court viewed the premises and observed that some succession had been achieved. Defendant's Exhibit No. 7 and Plaintiffs' Exhibit D give evidence of this. However, the evidence indicated that the induced succession of the ecosystems on mined out areas is and was an experimental, highly speculative matter. Drought, which has not occurred since the inception of reclamation in 1967 can be adverse to certain vegetation. The reclaimed area is the gentlest slope on the quarry. Twenty to 30 percent of the Queens Quarry is one to one slope or 45 degrees. Some slopes are greater. The slopes of 45 degrees and more would be most difficult to revegetate. This sort of reclamation is expensive and this sort of reclamation takes time, a great deal of it. The objective is to cause the reclaimed area to blend into the surrounding natural ecosystems or terrain. The condition at the Snyder Quarry in terms of spoils as plant growth medium would be similar to the Queens Quarry, because the slope of the Snyder Quarry as shown by Plaintiffs' Exhibit A is similar to the Queens Quarry slope. The court finds that although succession can be speeded up, it is a very long process, much too long to alleviate the aesthetic effects of removing the top soil on the 120 acres composing the Snyder Quarry or the adjoining limestone land.

18. The business of defendant is a useful one to the community and society. It, however, is not essential for there are available other aggregates to be used in construction of buildings and roads. The defendant has 33 full-time employees. The production of defendant from the Queens Quarry in 1970 was 440,000 tons. The defendant paid approximately $192,000.00 in taxes in 1970. The company paid approximately $440,000.00 in salaries that year. It has $900,000.00 invested in equipment (at Queens and Lennox-Breed Quarries — there is no equipment at Snyder now). It has invested in theSnyder Quarry lands, including mineral interests only, the sum of $250,000.00. It has an overall inventory investment of $52,000.00. There are truckers employed by others who secure some of their income from the operation of the defendant. The profit per ton sold is from 50 to 60 cents.

19. The limestone beds on the Snyder Quarry have many [2 ELR 20351] strata. One stratum is composed of what is called high calcium limestone. This stratum contains 95 to 98 percent of Calcium Carbonate (CACO³). It is 12 to 15 feet thick and lies near the top of the limestone strata. The strata is covered by five to six inches of rocky soil on top of 10 to 15 feet of shattered limestone. This is known as the overburden and defendant plans to strip it. There is 10 to 15 feet of limestone under this and then occurs the high calcium limestone. Some of the calcium and limestone is often displaced by magnesium. Limestone containing about equal parts of calcium and magnesium is known as dolomite. When lesser amounts of calcium has been displaced it is called dolomitic limestone. The great majority of this limestone is dolomitic. The defendant plans to "day light" on Williams Canyon and to remove by quarrying its east face.The quantity of the limestone in place was estimated by the defendant's employees as forty million tons. On depositions the same witnesses estimated the tonnage as fifteen or sixteen million tons. The latter figure is the more likely one. The depth of the strata varies. It is cut by two large canyons and many small ones. It has not been core drilled extensively.

20. It is probable that the limestone formation may be mined underground by the room and pillar method. The cost would be approximately another 35 to 40 cents a ton. There could be vertical joints in the strata which would cause pillars to collapse. There could be weathering and crumbling of pillars. However, the Cave of the Winds, across the Williams Canyon from the Snyder Quarry, does not seem to be suffering from these disabilities.

21. The zoning resolution of the County of El Paso permit mining and quarrying on the 160 acres of land composing what is known as the Snyder Quarry, which is not located in any municipality. The resolution setting up the F - Forest and Recreation District zone was adopted in 1942. The subject property was subjected to zoning by the County of El Paso in 1958 and was placed in the Forest and Recreation District. The lands of which the defendant is the owner of mineral rights only are zoned by the City of Colorado Springs so as to permit mining and quarrying. This was accomplished by an annexation ordinance of the city providing that the lands should be subject to the identical zoning as applicable prior to annexation, which permit the use of mining and quarrying. The date thereof is August 27, 1963.

In 1967 there was organized what is known as Pikes Peak Area Council of Governments. There is considerable question as to whether or not it was when formed or is now a Regional Planning Commission as provided by Section 106-2-4, 1963, C.R.S. However, it is clear that there was no such Regional Planning Commission of which El Paso County, the City of Colorado Springs and the City of Manitou Springs were members in 1942, 1958 or 1963. There was certainly no surveys and studies as described in said Section 106-2-5 (3) and 106-2-6, 1963, C.R.S. made by such a planning commission of the zoning of the subject property prior to the adoption thereof by the City of Colorado Springs in 1963, 106-2-31 C.R.C., 1963, having been adopted in 1959. There was no such studies made prior to the county zoning.

CONCLUSIONS OF LAW

1. Judicial notice in Colorado has been taken by courts of geographical locations of cities, counties, the population of a county from the Colorado Year Book, 1932, and generally of matters of common knowledge in the community in which they sit. Gibson v. Austin, 23 Colo. App. 220, 224, 128 P. 859; Israel v. Wood, 93 Colo. 500, 502, 503, 27 P.2d 1024. The rule under which courts take notice of matters of common notoriety and common knowledge has been applied in respect of a variety of economic and financial facts and conditions. Jones on Evidence, Fifth Edition, Section 141, Page 248, Vol. 1. The court concludes it may judicially notice the matters contained in Paragraph 2 of the findings of fact.

2. A matter which amounts to an unreasonable interference with the comfort of persons in the neighborhood may be a nuisance regardless of the fact that there is no demonstrable pecuniary loss. 66 C.J.C. 771. The above doctrine was applied in Krebs v. Hermann, 90 Colo. 61, 6 P.2d 907, and an injunction issued. The Kentucky Court of Appeals, the highest court of that state, recently (1964) enjoined the anticipated operation of a rock quarry in the case of Associated Contractors Stone Company v. Peewee Valley Sanitarium and Hospital, 376 SW 2d 316, 319, on the grounds that the operation would affect the peace and quiet of the neighbors in the enjoyment of their homes. This court stated:

"In Louisville Refining Company v. Mudd, Ky., 1960, 339 SW 2d 181, we scanned some of the historical developments in the law of nuisance. There was a time when a man's right to the unmolested enjoyment of his property was nearly absolute, but the industrial revolution changed all this, and there came a time when industry could do no wrong so long as its actions were lawful and it committed no direct trespass. Today the policy of the law is to achieve a reasonable balance between the peace and dignity of the individual, especially in the enjoyment of his home and community, and the needs of commerce."

"The evidence established with reasonable certainty that the dwellings of at least some of the plaintiffs would be subjected for an unlimited period in the future to the process of being shaken to such a degree as to constitute a material and continuing annoyance. This is no less real, no less reasonable, and no less wrongful an invasion than a direct trespass. The distinction between a nuisance and a trespass in this respect is without substance or justificable effect. cf. Bartman v. Shobe, Ky., 1962, 353 S.W.2d 550, 555. The chancellor's finding that a nuisance necessarily would result was not clearly erroneous."

Some other cases are Adams v. Snouffer, 88 Ohio App. 79, 87 N.E.2d 484 487, where an operation of a quarry was enjoined on the principal that the nuisance complained of produced such a condition of things as in the judgment of reasonable men is naturally productive of actual physical discomfort to persons of ordinary sensibilities and of ordinary tastes and habits and as under the circumstances of the case is unreasonable and derogative of the rights of the home owning plantiffs. In Shaw v. Salt Lake County, 119 Utah 50___, 224 P.2d 1037, the Utah Supreme Court protected the homes of the plaintiffs there from the operation of a gravel quarry, a rock crusher and a hot asphalt plant by a county by enjoining the same.

This court concludes the operation of the Snyder Quarry by defendant in the past has been and if operated in the future as a sidehill or pit quarry will be a private nuisance as to the plaintiffs living in the Crystal Hills subdivision and close by. The blasting in the open is a necessary ingredient to such an operation. The defendant should be enjoined from operating the quarry as a sidehill or pit quarry.

3. The interests of identifiable third persons, not parties to the injunction suit, the public interest of the local community and the interests of the public in various social policies must often be balanced against other factors in the determination of the appropriateness of an injunction. Sometimes this interest will be found to be a makeweight on the side of the plaintiff, at others it may strengthen the arguments of the defendant. Section 942, Torts, Restatement of the Law, Volume IV, Pages 716, 717; Sections 31, Injunctions, 43 C.J.S. 465; and section 59, Injunctions, 42 Am. Jur. 2d 802. It was with this doctrine in view that the defendant introduced evidence as to the use of its products, the number of its employees and its economic impact on the community. The court concludes, however, that the potential harm to the economic base of the community threatened by the unsightly results of stripping the overburden on the side of this part of the Rampart Range overrides this evidence. The equities are with the plaintiffs.

4. By far the most harmful results as regards the public of the proposed operation of the Snyder Quarry by defendant flows from its aesthetic considerations. An ugly and unsightly marring of a mountainside clearly visible in many parts of a community catering to a flourishing tourist industry and visible for many miles to the east and north from arterial highways servicing the community will result. In Massachusetts, the Supreme Judicial Court in a case where loam was being removed by stripping the top soil and shipping it away the court stated the process leaves a desert area in which for a long period of time little or nothing will grow except weeds and brush, stated:

[2 ELR 20352]

"* * * The effects of such an unsightly waste in a residential community can hardly be otherwise than permanently to depress values of other lands in the neighborhood and to render them less desirable for homes. If this process should be repeated upon tract after tract of suburban land the cumulative effect might well become disastrous to certain localities."

Town of Burlington v. Dunn, 318 Mass. 216, 61 N.E.2d 243, 168 A.L.R. 1181, 1186.

The aesthetic and ecological effects of certain proposed actions have been increasingly recognized of late. It forms a basis for administrative agencies in the considerations bearing on the issuing of permits for various activities. In Scenic Hudson Preservation Corp. v. Federal Power Commission, (C.C.A. 2d Cir.), 354 F.2d 608, the court set aside orders of the Federal Power Commission permitting the construction of a pumped storage hydroelectric project on the west side of the Hudson River at Storm King Mountain. The matter was remanded back to the commission to consider the scenic and ecological results of the construction of the project before permitting its construction. The court stated at Page 613 of the report as follows:

"The Storm King project is to be located in an area of unique beauty and major historical significance. The highlands and gorge of the Hudson offers one of the finest pieces of river scenery in the world. The great German traveler Baedeker, called it 'finer than the Rhine'. Petitioner's contention that the commission must take these factors into consideration in evaluating the Storm King project is justified by the history of the Federal Power Act."

In Zabel v. Tabb (1970, C.C.A. 5th Cir.) it was held that under the National Environmental Policy Act of 1969 and the Fish and Wildlife Coordination Act, the Secretary of Army could refuse to authorize a dredge and fill project of 11 acres of tidelands in navigable waters for factually substantial ecological reasons, even though the project would not interfere with navigation, flood control or the production of power. The court stated:

"It is the destiny of the Fifth Circuit to be in the middle of great, oftentimes explosive issues of spectacular public importance. So it is here as we enter in depth the contemporary interest in the preservation of our environment * * * The establishment was entitled, if not required, to consider ecological factors and, being persuaded by them, to deny that which might have been granted routinely five, ten or fifteen years ago before man's explosive increase made all, including Congress, aware of civilization's potential destruction from breathing its own polluted air and drinking its own infected water and the immeasurable loss from a silent spring-like destruction of nature's economy. We reverse." 430 F.2d 199, 200.

The courts of Colorado from early times have been concerned with these matters. In Suffolk Gold Mining and Milling Co. v. San Miguel Consolidated Mining and Milling Co; (1897) 9 Colo. App. 407, 415, 416, 48 P. 828, the court of Appeals enjoined the pollution of a stream by mine tailings, and said:

"* * * The lower owners were entitled to have the waters preserved in their purity, that fish might swim, that their stock might drink, and that the water might be applied to domestic uses."

In Mack v. Town of Craig, 68 Colo. 337, 341, 191 P. 101, the latter case was cited in a case wherein our Supreme Court refused to permit the town to condemn land for a sewer outlet which would pour untreated sewage into the Yampa or Bear River and thus pollute the streams. The court held that cities and towns have no right to befoul and contaminate public streams with raw sewage.

In Wilmore v. Chain O'Mines, 96 Colo. 319, 325 44 P.2d 1024, the words of Suffolk G.M. & M. Co., supra, were quoted and the pollution of a stream was enjoined.

The fact that we have not fully lived up to the promise of these cases is no reason not to apply them here. The court concludes that the defendant has commenced and if permitted will continue to perpetuate a nuisance which will tend to destruct one of the most beautiful regions of America, will offend the sensibilities of thousands of persons and injure seriously one of the main economic basis of a large community at the foot of the proposed quarry. It should be abated by injunction.

5. It is suggested that the nuisance is a public one and cannot be abated by the plaintiffs who are private individuals. However, a public nuisance may also be a private nuisance. City of Denver v. Muller, 7 Colo. 345, 3 P. 693; and Seigle v. Bromley, 22 Colo. App. 189, 195, 124 P. 191. Here the plaintiffs who live in Crystal Hills have and will have the closest view of the Snyder Quarry of anyone. They would see the quarry daily. As suggested in Town of Burlington v. Dunn, supra, the effect of such an unsightly waste upon this residential community would necessarily depress the value of the homes. The depression of the economic base of the City of Manitou Springs would further depress these values. The court concludes the Snyder Quarry operation as carried on and proposed is also a private nuisance to these plaintiffs on the basis of aesthetics and they may maintain this claim.

6. Robinson Brick Co. v. Luthi, 115 Colo. 106, 169 P.2d 171, is cited as absolutely forbidding this court from entering an injunction in this claim. It is asserted that where an activity is permitted by the applicable zoning, the legislature has declared what activities may or may not be conducted in a prescribed zone and there remains no proper field for judicial action in the public nuisance field. This court concludes that Luthi is not applicable to the facts of this case on the following grounds: (a) There are exceptions to the Luthi doctrine. It is not peculiar to Colorado. As between two commercial or industrial activities occurring in the same commercial or industrial zone the doctrine is perhaps essential. The Luthi doctrine was expressly adopted by the Washington Supreme Court, yet not applied in that case for the reason that the zoning ordinance in question did not actually permit the use involved. Shields v. Spokane School District, #81, 31 Wash. 2d 247, 196 P.2d 352, 357. In Harris v. Skirving, 41 Wash. 2d 200, 248 P.2d 408, the Washington Court affirmed a permanent injunction restraining the operation of a properly zoned garbage pit operation adjacent to a residential area on the theory that the nature of the business is inherently obnoxious in a residential area. In California the rule has been codified. Under this codification California has enjoined the unreasonable operation of a music studio. Gelfand v. O'Haver, 33 Ca. 2d 218, 200 P.2d 790. This court concludes that this case falls into an exception to Luthi. Luthi involved two commercial activities in one zone and did not involve a residence or a residential area as this one does.

(b) In this case there are three zoning authorities involved. One is El Paso County, one is the City of Colorado Springs wherein the defendant's properties lie and the third one is the City of Manitou Springs wherein most of the properties of plaintiffs are situated. The contention is that the fact that one zoning authority permits a property to be used for a commercial use removes from the court the power to enjoin an unreasonable use by the operator thereof in the zone which use there becomes a nuisance to persons in a nearby residential area. Luthi does not so hold. Its facts limit it to one zone, that is, one created by one zoning authority and to two commercial or industrial uses permitted to operate in that zone. It does not purport to decide the question raised in this case.

County zoning was authorized in 1939. In 1959 the General Assembly created Regional Planning Commissions to be composed of representatives of involved cities and counties. Session Laws, 1959, Page 616, Section 106-2-4 1963, C.R.S. Section 106-2-32, 1963, C.R.S., (Session Laws 1959, Page 623) provides:

"The Regional Planning Commission shall have primary responsibility for those broad plans described in Section 106-2-5 (3) and surveys and studies described in Section 102-2-6, which clearly affect the physical development of two or more governmental units * * *"

That this includes the planning and zoning of the subject [2 ELR 20353] lands is evident from the reading of said Section 106-2-5 (3) and 106-2-6. This is a clear recognition of the fact that in some instances the activities conducted in one zone created by one zoning authority does affect persons and lands located in another area governed by a different zoning authority. It is clear that the legislature has not granted carte blanche power to one zoning authority to permit a use within its boundaries which will be a nuisance as to residents and home owners nearby. Nor has it denied to the courts the power to enjoin such a nuisance, the effects of which cross boundary lines of established zones.

(c) The blasting done by the defendant past and future and the dust matter are private nuisances. Luthi has no application thereto.

7. The court concludes that the defendant should be enjoined as follows, namely:

(a) From operating the Snyder Quarry or the property between it and the Queens Canyon Quarry in which it owns mineral rights in such a manner as to detonate explosives or blasts which through concussions, vibrations or otherwise affect the residential property of the plaintiffs who own homes in the Crystal Hills subdivision in Manitou Springs, Colorado, which affect so adversely the residential properties of the plaintiffs who own homes in the Crystal Hills subdivision in Manitou Springs, Colorado, as to cause the nuisances thereto as herein found, and to refrain from mining said properties by means of a pit or a sidehill quarry;

(b) From mining said properties in such a manner as to leave subject to wind actions such quantities of finely ground limestone or other fines as will create a definite hazard to the plaintiffs living in Crystal Hills and between Crystal Hills and the quarry through particulates being carried from the quarry by the prevailing southeasterly winds;

(c) From mining said lands by any method, including a pit or sidehill quarry, which results in the stripping of the overburden or top soil of the land; from removing or stripping from said land the overburden thereof or the top soil and the flora growing thereon in connection with mining activities; from daylighting through the east side of Williams Canyon or from removing any part of either side thereof, provided, however, that in the exercise of its rights to underground mine the properties, defendant may create such portals as may be necessary therefor, but shall use due care in the location and design thereof so as to minimize the aesthetic consideration; and further provided, however, that the underground mining operation be so conservatively engineered in regards to the rooms and pillars as to furnish proper support of the roofs of the rooms so that they do not collapse.

8. The court rejects defendant's contention that the above injunction constitutes the taking of its property under Article 14 and 15 of Article II of the Colorado Constitution. One has no property right in a nuisance. Gaskins v. People, 84 Colo. 582, 587, 272 P. 662, 664.

Let there be entered pursuant to Paragraph 7 of these conclusions of law a judgment in which defendant's property be described with particularity.