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Harrison v. Indiana Auto Shredders Co.

Citation: 6 ELR 20179
No. No. 75-1367, 528 F.2d 1107/8 ERC 1569/(7th Cir., 12/31/1975)

The Seventh Circuit Court of Appeals dissolves a permanent injunction and reverses an award of compensatory and punitive damages in a nuisance action brought against an automobile shredding-recycling facility located in a heavy industry zoned area of Indianapolis. The facility is not a nuisance per se, since no imminent health or safety hazard was proved at trial. Claimants' lay testimony, although showing annoyance with the shredder, failed to establish an actual danger to health or safety. Defendant's expert testimony, on the other hand, proved that the operation conformed to all applicable air pollution and zoning regulations. A nuisance in fact, which interferes with others' reasonable use and enjoyment of their property, is determined by the facts and circumstances of each case. Under the clearly erroneous standard of review, the district court's permanent injunction cannot stand where all expert testimony indicates compliance with anti-pollution regulations and defendant has continuously endeavored to mitigate vibration, noise and particulate emissions from the shredder. In view of defendant's mitigation, an award of punitive damages is also improper. The proper measure of damages, if an award were justified, would be loss of use measured by rental value.

A dissent argues that the district court's findings of nuisance liability under the statute and of damages to property were not clearly erroneous. The injunction should be modified to allow shredder operation subject to judicial supervision.

Counsel for Plaintiffs
William A. Hasbrook
120 E. Market, #410
Indianapolis IN 46204
(317) 634-4356

Counsel for Defendant
Stephen W. Terry, Jr.
Wilson S. Stober
Baker & Daniels
810 Fletcher Trust Bldg.
Indianapolis IN 46204
(317) 636-4535

Before CLARK. Associate Justice,* FAIRCHILD, Chief Judge, and PELL, Circuit Judge.