This action is brought to have a television transmission tower known as WOR-TV North Bergen adjudged a public nuisance and abated by the removal of all or part of it.
The tower, which rises 760 feet above the ground and 1,000 feet above sea level, is situated on the Hudson River Palisades about two miles due west of Central Park, New York City. It was located there apparently to obtain a maximum television broadcasting radius in the New York metropolitan area. The construction work was commenced in the fall of 1948 and completed in late June 1949. The cost of the tower, exclusive of electronic equipment, was approximately $350,000. Broadcasting commenced in August 1949, and was discontinued in December 1953. Thereafter the station broadcast its programs from the Empire State Building in New York. Since that time a caretaker or watchman has been on duty during part of the daylight hours. The tower stands in a built-up residential neighborhood. Within a radius of three or four blocks the buildings are mostly one- and two-family houses with some multifamily apartment houses. There is a large public school about two blocks away, and in the very city block in which it is located there is a moving picture theatre with a seating capacity of about 1,000. It is in a block bounded by 72nd Street on the south, 73rd Street on the north, Palisade Avenue on the east and Bergenline Avenue on the west. The width of 72nd and 73rd Streets and Palisade Avenue is 50 feet. The distance between 72nd and 73rd Streets is 200 feet. The tower base is about 96 feet square and is about 50 feet west of Palisade Avenue. The tower is unguyed. In it there is a control house about 550 feet above the ground. On three sides of it the dwelling houses are approximately 100 feet from its base. In the environs in which it is set, it can be appreciated why this tower is regarded by some residents in the immediate vicinity as a monstrosity.
The plaintiffs contend that the tower is a nuisance per se because it is not constructed adequately to withstand hurricane
winds, and because ice and snow accumulate on it, and upon thawing fall beyond the property lines of the owner of the tower, with damage to adjoining property and risk of injury to people in the vicinity. It is contended also that there has been negligence in the maintenance of the tower in that warning lights upon it have been allowed to go out, causing it to become a menace to aerial navigation in foggy weather and at night, and in permitting fires to occur on the structure with damage in one case to property in the vicinity.
It would seem that this action, which was commenced on January 20, 1955, was instituted as a result of the psychological reaction of people in the neighborhood to the hurricane "Carol" (August 31, 1954) and the hurricane "Hazel" (October 15, 1954). These storms caused high winds in the vicinity of the tower, and produced howling and eerie noises which terrified some people in the vicinity according to their testimony. This reaction was aggravated by the knowledge that WBS-TV, a television tower in the vicinity of Boston, Massachusetts, failed in the storm "Carol." This was a 640-foot guyed tower which broke off at about the 250-foot elevation. In addition to all this, there probably was present in the minds of people in the neighborhood a fear or suspicion that the tower would not be properly maintained as a result of the cessation of broadcasting operations in December 1953. Added to the psychological factor is the fact, which is admitted by the defendants' expert on tower construction, that the WOR-TV tower is unique as regards its height in the type of environs in which it is set. Having mentioned the tower failure at Boston, it should be noted that there was no proof of the cause of it, whether due to defective design, faulty construction, wind velocity, or some combination of them.
The defendants deny that the tower constitutes a nuisance and they deny any negligence in its maintenance or operation. In addition to this, the defendants urge that the tower was erected pursuant to a permit issued by the township of North Bergen and in conformity with the
requirements of it and the Civil Aeronautical Authority and under a license issued by the Federal Communications Commission. They urge that under these circumstances the maintenance and operation of the tower cannot constitute a public nuisance in the absence of negligence and that such negligence must consist of something more than a mere doing of the authorized act. This is based on the well-known principle that where the doing of a thing that would otherwise be a public nuisance is authorized by legislative authority, the doing of that thing by the person so authorized in the manner authorized cannot constitute a public nuisance in the absence of negligence and such negligence must consist of something more than the mere doing of the authorized act. Many cases are cited in support of this, but it will be sufficient to note Beseman v. Pennsylvania R.R. Co. , 50 N.J.L. 235 (Sup. Ct. 1888), affirmed 52 N.J.L. 221 (Err. & App. 1890). These cases all involve public utilities, principally railroad companies.
An examination of Beseman will show the reason for the rule. Chief Justice Beasley, speaking for the Supreme Court, 50 N.J.L. , at page 240 said:
"* * * It is a radical error to regard these corporations as simply private. They have a public as well as a private aspect, and it is on this account that the immunity in question belongs to them. * * * It would seem quite irrational to say that the making of the track is an act done so far in behalf of the community that the eminent domain of the state may be resorted to for its furtherance; but that the running of trains upon such track is a purely private affair, in which the people at large have no interest. These roads, in view of their effect upon social and commercial interests, are of vastly more importance than are most of the public highways; and it is on account of this transcendent usefulness that they, to a large extent, have been, and must be regarded as, public agencies. Looking at them in this light, it is but following the ordinary path to declare that they are not responsible for those incidental damages that result from the proper exercise of their functions. This is the settled rule. The legislature may authorize the altering the grade of a city street. Such act may occasion immense loss to the owners of the abutting property, and such loss is damnum absque injuria; the reason being that the improvement is a matter of public concern, and that each individual member of the community, while he is entitled to its benefits, must submit to its
burdens. The attitude of a railroad company, so far as relates to the applicability of legal principles, is not dissimilar. They run their trains by legislative authority for the public benefit; and on that account, in doing such acts, they are so far forth the representatives of the body of the people. The defendant alleges that it has kept entirely within the limits of its chartered rights in running its trains, and that the plaintiff has suffered no damage, except such as is necessarily incident to such transactions; and it seems to me that, if this be true, this action cannot be maintained."
While a license was granted by the Federal Communications Commission for broadcasting from the tower, the fact remains that the operation of the tower is entirely private and for commercial profit. It has been held in the federal courts that a radio broadcasting station is not a public utility in the sense in which a railroad is. Pulitzer Pub. Co. v. Federal Communications Commission , 68 App. D.C. 124, 94 F.2d 249 (C.A.D.C. 1937); Federal Communications Commission v. Sanders Bros. Radio Station , 309 U.S. 470, 642, 60 S. Ct. 693, 84 L. Ed. 869, 1037 (1940).
Consequently, notwithstanding that the local authority granted a building permit and that the Federal Communications Commission licensed the broadcasting operation and that the site of the tower and the height thereof were approved by the Civil Aeronautics Authority, the court may at this time consider the question whether or not the operation and maintenance of the tower in itself may constitute a nuisance.
In 66 C.J.S., Nuisances , we find the following definitions:
§ 1. "Although the term 'nuisance' has been regarded as incapable of precise definition so as to fit all cases, it has also been held to be a term with a well defined legal meaning, and in legal phraseology applies to that class of wrongs which arise from the unreasonable, unwarrantable, or unlawful use by a person of his own property, real or personal, or from his own improper, indecent, or unlawful personal conduct, working an obstruction or injury to a right of another, or of the public, and producing material annoyance, inconvenience, discomfort, or hurt."
§ 2. "Nuisances are often classified either as public or private or both. A nuisance is common or public where it affects the rights enjoyed by citizens as part of the public; a private nuisance is one that affects a single individual or a determinate number of
persons in the enjoyment of some private right not common to the public; and a mixed nuisance is one which is public and which at the same time causes special damage to a private individual."
§ 3. "Nuisances are sometimes classified as per se and per accidens; a nuisance per se or at law is an act, occupation, or structure which is a nuisance at all times and under any circumstances, regardless of location or surroundings, while a nuisance in fact or per accidens is one which becomes a nuisance by reason of circumstances and surroundings."
Confusion is sometimes caused by designating a nuisance as one per se or as one per accidens. Such classification has reference to the proof and not the remedy. In the former the wrong is established by proof of the mere act -- here the erection of the tower as the plaintiffs contend -- and becomes a nuisance as a matter of law; in the latter by the proof of the act and its consequences. Gainfort v. 229 Raritan Ave. Corp. , 127 N.J.L. 409, 412 (Sup. Ct. 1941).
The plaintiffs contend that the tower is a nuisance per se , yet in the course of trial its counsel commented that it might not be a nuisance at all if located in the "meadows" in another part of the township. This is to say that it is a right thing in a wrong place, like a pig in the parlor instead of the barnyard, as was said in Village of Euclid, Ohio v. Ambler Realty Co. , 272 U.S. 365, 388, 47 S. Ct. 114, 71 L. Ed. 303 (1926). In the latter contingency the nuisance, if it were such, would be one per accidens.
Much of this is merely a matter of labels; the important consideration is whether the tower is a nuisance at all. It would seem, therefore, that the first question to be determined is whether the tower is in fact structurally inadequate to withstand winds of the velocity reasonably to be expected in the area. In other words, is there a real danger or risk of its toppling under weather conditions reasonably to be anticipated.
The second question is whether in the environment in which the tower is set is it a nuisance because of the probability that ice and snow frozen to its parts may thaw and fall upon people and property in the vicinity.
The third question is whether it has been improperly maintained so as to constitute a nuisance (a) in that warning lights on the tower have not been kept lighted with resulting hazard to aerial navigation, and (b) in allowing fires to occur on the tower with resulting damage or risk of it to property in the vicinity.
The burden of proof is on the plaintiffs. 66 C.J.S., Nuisances , § 127 (c); Benton v. Kernan , 130 N.J. Eq. 193 (E. & A. 1941); Hrycenko v. Board of Adjustment of City of Elizabeth , 27 N.J. Super. 376 (App. Div. 1953).
The proofs with respect to the winds that may be expected in the vicinity and the ability of the tower to withstand hurricane winds come from expert witnesses.
The plaintiffs called a meteorologist, Walter F. Zeltmann, who is chief meteorologist for Weather Photocast, a concern which prepares weather maps for newspapers and other publications. He testified to information as to storms in this vicinity from government records; he furnished certain governmental statistics and expressed his opinion as to what may be expected in the vicinity of the tower in the way of strong winds.
The plaintiffs called also Joshua Muss, a competent graduate engineer who has served as North Bergen's township engineer since 1931. Although he designed some structures for North Bergen, his experience in design and construction is limited. He ...