## Facts

- Cotco Enterprises, Inc. bought approximately 150 acres in Berlin Township, Mahoning County, Ohio, intending to construct and operate a drag strip.
- The surrounding area was primarily residential and agricultural, with nearby homes and farms (including livestock and crop operations).
- Neighboring landowners opposed the project and warned Cotco they would sue if it proceeded.
- Cotco began clearing the land; the landowners filed suit seeking an injunction to stop construction and operation.
- Berlin Township had no zoning regulations, and the proposed drag strip did not violate any zoning ordinance.
- At trial, plaintiffs presented expert evidence of decibel levels recorded at a comparable drag strip, supporting a finding that drag racing would generate extraordinary noise inconsistent with the neighborhood’s character and would interfere with neighboring use and enjoyment.
- The trial court enjoined construction and operation and also awarded plaintiffs attorney’s fees and other litigation expenses.

## Issues

1. Whether a proposed drag strip in a residential-agricultural area may be enjoined as a nuisance in fact based on anticipated extraordinary noise, even though drag strip racing is not a nuisance per se and there is no zoning violation.
2. What standard of proof applies to an injunction against an anticipated or threatened nuisance.
3. Whether attorney’s fees and litigation expenses may be awarded to plaintiffs as damages or costs in this nuisance action.

## Decision

- The court affirmed the injunction prohibiting construction and operation of the drag strip.
- The court held that, in this location, the proposed operation would constitute a nuisance in fact due to unreasonable and extraordinary noise causing serious interference with neighboring property use and enjoyment.
- The court applied a clear-and-convincing-evidence standard for anticipated nuisance and concluded the plaintiffs met that burden.
- The court reversed/disallowed the award of attorney’s fees and litigation expenses.

## Legal Principles

- Drag strip racing is not a nuisance per se.
- A lawful activity may be a nuisance in fact when, in its particular location and manner of operation, it unreasonably interferes with others’ use and enjoyment of property.
- A court may enjoin construction and operation of a proposed facility as an anticipated nuisance where evidence shows the operation will create unreasonable noise and serious interference in a residential or rural setting.
- The degree of proof required to enjoin an anticipated or threatened nuisance is clear and convincing evidence.
- Attorney’s fees are ordinarily not recoverable as costs or damages absent a recognized basis for fee shifting.

## Conclusion

The court upheld an injunction stopping a proposed drag strip because clear and convincing evidence showed its extraordinary noise would unreasonably interfere with nearby residential and agricultural uses, but it vacated the award of attorney’s fees and litigation expenses.


Gustafson v. Cotco Enters., Inc., 42 Ohio App. 2d 45 (Ohio Ct. App. 1974)