What is a Nuisance?

In the Magistrate  Court of Pocahontas County, West Virginia

 Case # 13-M38M-00374  -State v. John Leyzorek

Lorren H.Demotto, Plaintiff

                       

 3 December 2013                  

Motion #7, for Dismissal due to No Nuisance  2  Pages , with 2 sheets attached maps

Relief Requested

            Now comes before this honorable Court Defendant John Leyzorek, asking that the instant case and charge against him be DISMISSED, with prejudice, because the charge of Nuisance cannot be substantiated

History

            The instant charge under §17-23-9 is that I am maintaining a Public Nuisance  on my property.

Argument

            Michie's Jurisprudence of West Virginia states, “Nuisance exists where a... business in a strictly residential district materially lessens physical comfort  [of surrounding residents] (Kahlbaugh v A-1 Auto Parts 391SE 2d, 182 WVa 692, which states,  “Finding that the area in which auto salvage business was operating was not a residential area, so that it was not a nuisance, was supported by the evidence that there were commercial operations in the area, as well as farmland” (emphasis added)).

            My property (Map Reference Location #4) is located in a predominantly agricultural area, which however includes commercial and industrial uses as well, including  auto repair shop belonging to my immediate neighbor at the foot of my driveway ( Map Reference Location #2), stone quarry and scrap storage at Edray (Map Reference Location #3), auto and truck repair at two locations (Map Reference Locations #s 1 and 7), repair of tractors and heavy equipment  near Pleasant Hill Church (Map Reference Location #6), storage of commercial trucks, old cars, and equipment at Alderney (Map Reference Location #8), and a recycling business on Brush Country Road (Map Reference Location #5).  All these EXCEPT FOR MY LOCATION #4 are, incidentally, within 1000ft of the public road and visible therefrom.

            Therefore the district within which I am located is NOT even predominantly, still less “strictly” residential, not has any representation been made nor could any be made that anyone's physical comfort is affected by my possessions or activities,

            State Road Commission v.Oakes (1966) 150 WVa 709,149 SE 2d 293, 300 states, “It is true that [debris, rubbish, etc.,] are unsightly, but unsightliness without more does not produce or create an abatable nuisance”

            Further, to prove charge of nuisance, facts producing public injury and connecting it with public right or interest must be alleged and proved (Jeremy Imp Co v Com 106Va 482, 56 SE 22; State v Roda 143 WVa 460, 102 SE2d 293.  No allegations of public injury or public interest have been made, and none exist in the instant case.

2

            To constitute public nuisance the act done or duty omitted must affect injuriously some thing or right in which the community at large have a common interest. Keystone Bridge Co v Summers 12 WVa 476; Powell v Bentley and Gerwig Furniture Co 34 WVa 804,12 SE1085; Jeremy Imp Co v Com (supra)

            Nothing taking place or alleged to take place on my property  affects or is alleged to affect, injuriously or otherwise, any thing or right in which the community at large have a common interest.

            Therefore NO NUISANCE as charged exists under the Law and the charge is therefore VOID and must be DISMISSED, with prejudice.

John Leyzorek, pro se defendant is not an attorney, and recognizes and admits his ignorance of many fine points of law and procedure, but respectfully asserts  an understanding of the principles of justice and of his rights and of the merit of his defense .              

 He respectfully demands as his right recognized in Cottrell v Cottrell, Bush v Hammer, and others, the indulgence and assistance of this honorable Court, wherever his research or his knowledge of  procedure may be deficient but he attempts in good faith to make a valid point or to assert a right, or wherever a valid defense or a right exists of which he is ignorant.

He reserves the right to edit this filing to correct errors or add supporting material.

(signed)By Defendant Pro Se John Leyzorek   304-799-7191 2133 Edray Road Marlinton, WV 24954