The General Assembly has stated in quite broad language that any involvement of a vehicle in any unlawful sale of any controlled substance is sufficient misuse to justify the designation of the vehicle as a public nuisance under the statute. See Robinson Brick Co. v. Luthi, 115 Colo. 106, 169 P.2d 171 (1946). We conclude that section 16-13-302(3) permits classification of a vehicle as a class one public nuisance on the basis of a single sale of a controlled substance which transpires within a vehicle.
I. Taking up first the question of the public nuisance, this court very recently discussed the law of public nuisance as pronounced in Robinson Brick Co. v. Luthi, 115 Colo. 106, 169 P.2d 171. See Hobbs v. Smith, 177 Colo. 299, 493 P.2d 1352, wherein the following was quoted from Robinson Brick:
MR. JUSTICE HODGES delivered the opinion of the Court. We granted certiorari in this case to consider petitioner's argument that the decision of the Court of Appeals in Hobbs v. Smith, 29 Colo. App. 301, 484 P.2d 804 is contrary to the decision of the court in Robinson Brick Co. v. Luthi, 115 Colo. 106, 169 P.2d 171. The Court of Appeals affirmed a trial court judgment which granted an injunction prohibiting the continuation of circumstances which constituted a private nuisance. The petitioner interprets the Robinson case to stand for the proposition that when legislative authorities, by zoning ordinances, permit an act or a particular use of land, a court has no authority to enjoin a public or private nuisance naturally resulting therefrom.
The operation of the asphalt plant, within the purview of the zoning ordinance, is lawful, but as we said in Pennoyer v. Allen, supra, at page 512: Robinson Brick Co. v. Luthi (1946), 115 Colo. 106, 111, 169 P.2d 171, 166 A.L.R. 655. ". . . such interruption [of enjoyment] and destruction [of comfort] is an invasion of private rights, and to that extent unlawful. It is not so much the manner of doing as the proximity . . . to the adjacent occupant which causes the annoyance."
In In re Harbison v. City of Buffalo, 4 N.Y.2d 553, 152 N.E.2d 42, many cases are cited where decisions have sustained ordinances where the time provided was held reasonable. See, Livingston Rock Gravel Co. v. County of Los Angeles, 43 Cal.2d 121, 272 P.2d 4; Standard Oil Co v. City of Tallahassee, 183 F.2d 410, certiorari denied 340 U.S. 892, 71 S.Ct. 208, 95 L.Ed. 647; Spurgeon v. Board of Commissioners of Shawnee County, 181 Kan. 1008, 317 P.2d 798; Grant v. Mayor City Council of Baltimore, 212 Md. 301, 129 A.2d 363; Robinson Brick Co. v. Luthi, 115 Colo. 106, 169 P.2d 171, 166 A.L.R. 655; City of Corpus Christi v. Allen, 152 Tex. 137, 254 S.W.2d 759; Stoner McCray System v. City of Des Moines, 247 Iowa 1313, 78 N.W.2d 843, 58 A.L.R. 2d 1304; United Adv. Corp. v. Borough of Raritan, 11 N.J. 144, 93 A.2d 362. A number of states and municipal bodies have adopted statutes authorizing this approach to the problem.
This court does not subscribe to the doctrine that the state board of health by virtue of sec. 144.03, Stats., is given exclusive jurisdiction over the determination of nuisance so as to foreclose a judicial determination of whether the operation of a sewage-disposal plant results in creating a nuisance. This doctrine as expounded in Robinson Brick Co. v. Luthi (1946), 115 Colo. 106, 169 P.2d 171, 166 A.L.R. 655, and applied to a zoning ordinance results in a legislative pre-emption of the public-nuisance field and allows only damages when such public nuisances also constitute a private nuisance. In Hasslinger we held the approval by the state board of health of the plans which involved the location of the sewage-disposal plant did not foreclose a judicial determination of whether the plant was a nuisance by reason of its location; the same may be said of the method of its operation.
situation, communities have sought new forms of ordinances restricting nonconforming uses, and in particular have turned to provisions which require termination after a given period of time. With the exception of a decision of the Ohio Supreme Court (which may be explained on the basis of the particular language and application of the ordinance) in City of Akron v. Chapman ( 160 Ohio St. 382 [criticized in 67 Harv. L. Rev. 1283]), the decisions have sustained ordinances where the time provided was held reasonable ( Livingston Rock Gravel Co. v. County of Los Angeles, 43 Cal.2d 121, 123-127; City of Los Angeles v. Gage, 127 Cal.App.2d 442, 453-458; Standard Oil Co. v. City of Tallahassee, 183 F.2d 410, cert. denied 340 U.S. 892; Spurgeon v. Board of Comrs. of Shawnee County, 181 Kan. 1008; Grant v. Mayor City Council of Baltimore, 212 Md. 301; State ex rel. Dema Realty Co. v. Jacoby, 168 La. 752; State ex rel. Dema Realty Co. v. McDonald, 168 La. 172, cert. denied 280 U.S. 556; see Robinson Brick Co. v. Luthi, 115 Col. 106, 111-112; City of Corpus Christi v. Allen, 152 Tex. 137, 142; Stoner McCray System v. City of Des Moines, 247 Iowa 1313, 1320; United Adv. Co. v. Borough of Raritan, 11 N.J. 144, 152). A number of States and municipal bodies have adopted statutes authorizing this approach to the problem (as, e.g., Ill. Ann. Stat., ch. 24, § 73-1; 3 Va. Code [1950], § 15-843; see, also, list in n. 1 in Grant v. Mayor City Council of Baltimore, supra); and the textwriters generally express the opinion that they would be constitutional if reasonable (1 Antieau on Municipal Corporation Law, § 7.03[3]; Bassett on Zoning, pp. 115-116; 8 McQuillin on Municipal Corporations [3d ed.], § 25.190; see, also, Law Reviews cited supra).
The courts below correctly refused to grant the injunctive relief prayed for by plaintiffs. Such refusal is fully supported by the reasons given and the authorities cited by the Court of Civil Appeals (loc. cit. 300 S.W.2d 123), notably, Storey v. Central Hide Rendering Co., 148 Tex. 509, 226 S.W.2d 615. See, also, Bartel v. Ridgefield Lumber Co., 131 Wn. 183, 229 P. 306, 37 A.L.R. 683; Robinson Brick Co. v. Luthi, 115 Colo. 106, 169 P.2d 171, 166 A.L.R. 655. Compare Brede v. Minnesota Crushed Stone Co., 143 Minn. 374, 173 N.W. 805, 6 A.L.R. 1092, Id., 146 Minn. 406, 178 N.W. 820, 179 N.W. 638. Plaintiffs' application and brief discloses no error affecting the rendition of judgment in favor of Limestone Products Company. While it may be conceded that an owner remains liable for damages despite a subsequent leasing when he has created a nuisance or the particular use contemplated or to which the property is adapted necessarily results in a nuisance, Perez v. Rabaud, 76 Tex. 191, 13 S.W. 177, 7 L.R.A. 620; Wilkerson v. Garrett, Tex.Civ.App., 229 S.W. 666, wr. ref., it is nevertheless recognized that if the lessee's method of operating a factory or processing plant alone accounts for the damage sustained, the owner, being free of fault, would not be jointly liable with the lessee-operator.
" [1] We adopt the following language in the case of Robinson Brick Co. v. Luthi, 115 Colo. 106, 169 P.2d 171, 166 A.L.R. 655. "Where the legislative arm of the government has declared by statute and zoning resolution what activities may or may not be conducted in a prescribed zone, it has in effect declared what is or is not a public nuisance.