COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60848 BRIAN H. BIGLER, ET AL. : : : PLAINTIFFS-APPELLEES : JOURNAL ENTRY : v. : AND : : OPINION OHIO VALLEY COAL COMPANY : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 6, 1992 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Case No. 172353. JUDGMENT: REVERSED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Lewis Einbund, Esq. National City Bank Bldg. East 6th St. - 2nd Floor Cleveland, Ohio 44114 For Defendant-appellant: Harry D. Cornett, Jr., Esq. Arter & Hadden Co. 1100 Huntington Building Cleveland, Ohio 44115 - 2 - SWEENEY, JAMES D., J.: Defendant-appellant Ohio Valley Coal Company ("OVC") appeals from the trial court's issuance of a permanent injunction restricting OVC's use of State Route 148 in Belmont County, Ohio, to one hundred round trip shipments of coal by truck between the 1 hours of 6:30 a.m. and 4:30 p.m., commencing January 5, 1991. Based on the reasons adduced below, we reverse. A review of the lengthy record reveals that plaintiffs- appellees Brian Bigler, Howard Bigler, Jean Bigler, Dennis Bigler, and Alexa Bigler ("the Biglers") own, and reside on, a farm of approximately 252 total acres located on State Route 148, approximately six miles west of the Ohio River. OVC's coal mine, known as Powhatan No. 6, is located along State Route 148, approximately two miles west of Alledonia, Ohio, and fifteen miles from OVC's harbor facility on the Ohio River at Powhatan Point, Ohio. OVC began doing business on May 25, 1988, when Mr. Robert E. Murray ("Murray"), having obtained the rights to Powhatan No. 6 and its facilities from its previous owner, formed the company and became its president and chief executive officer. At that time, the mine's only customer was the Cleveland Electric Illuminating Company and the annual output to that customer had 1 OVC, at the time of trial, employed 427 persons, and had coal reserves of 154 million tons, covering some 36 square miles underground. Also, OVC's activities account for 12% of the county's employment. At the time of beginning operations in May, 1988, OVC employed directly 287 persons. - 3 - decreased over time to 1.2 million tons which was shipped to Northeast Ohio by rail from the mine. At times, this customer's coal was shipped by truck when emergencies and natural conditions disrupted rail traffic. To maintain the long term viability and market competitiveness of the mine, Murray recognized the need to expand his customer base. To make his coal more financially attractive to potential customers, Murray set about to decrease his unit cost of coal by increasing production at the unionized mine. By making changes in the coal extraction process at the mine, specifically, replacing rail track hauling in the mine with a conveyor belt system and installing a longwall mining system to replace the continuous Roman pillar type of mining, production increased and the unit cost of OVC coal fell. As a result, OVC obtained a spot contract with the American Electric Power Company in August, 1988, to ship coal by truck to their Kammer Power Plant ("Kammer") operation on the Ohio River near Moundsville, West Virginia, thereby supplementing, as needed, their regular long term supplier. Kammer has no barge facility on the Ohio River. The amount of OVC coal shipped to Kammer varied between 0-40,000 tons per month according to Kammer's requirements. Kammer, like all coal customers, dictates the volume of coal it needs for a given period of time and the number of days for shipping. - 4 - The coal bound for Kammer was transported eastbound along State Route 148, past the Bigler property to Powhatan Point, then east on State Route 7 to the Moundsville Bridge over the Ohio River, southbound to West Virginia State Route 2 to the Kammer Plant. The empty trucks would return to the mine over the same route. Each coal truck would carry between 23-25 tons of coal and would normally make four round trips per day between the mine and Kammer. Each one-way trip would take approximately forty- five minutes to travel the approximately thirty miles distance between Kammer and the mine. On average, Kammer required 60-80 truck loads per day from the mine, twenty days per month. Eighteen to twenty trucks, contracted from a local common carrier, would be used to accomplish this shipping schedule. Kammer accepted coal deliveries between the hours of 7:00 a.m. to 4:00 p.m. on normal work days. From February, 1989, through July, 1990, OVC also trucked coal to river barge traffic at the Powhatan Point harbor facility using twenty-four trucks per work day with each truck making four round trips to the harbor. In July of 1990, OVC obtained a contract with Conrail to supply forty-eight electrically operated coal cars along the railroad line connecting the mine to the harbor facility at Powhatan Point. This shuttle train, which is capable of carrying 4,800 tons of coal, ships one train load of coal to the river barges at the harbor each working day. The right of way for this rail line generally follows State Route 148. If this train load of coal is - 5 - not sufficient to fill the waiting three river barges due to their varying sizes, OVC trucks coal to the harbor facility as needed to top off the barges. The use of the shuttle train has reduced truck traffic from the mine to the harbor by 85%. A ground storage facility at the harbor for the short term stockpiling of up to 100,000 tons of coal is scheduled to go on line in October, 1990. This would eliminate all trucks to the harbor from the mine for regular coal shipments which supplement the barges. However, due to federal clean air legislation and reduction of sulphur dioxide emissions, OVC anticipates the need to blend low sulphur coal from mines in southern West Virginia and Kentucky with its own high sulphur OVC coal so that certain power plants could still use OVC coal and comply with federal clean air standards. This blending would be done at the harbor or the mine depending on the product specification of the customer. OVC personnel testified that trucking would be needed to get the blended coal to the mine for certain types of processing not available at the harbor facility. OVC personnel also testified that the company ships by truck 6,000 tons per month of processed coal from the mine under a spot contract to a power station at Kyger Creek. This shipment is accomplished over a two-day delivery period dictated by the customer. It must be trucked because the railroad cars cannot handle the size of the crushed processed coal on the order. - 6 - Since OVC began operating the mine in mid-1988, the volume of truck traffic along State Route 148 has increased. In addition to the truck traffic generated by the operations of OVC, other competing coal companies from Belmont County and sand and gravel mines use State Route 148 to bring their products to market. Also using this route are automobiles, trucks, and vehicles of every description hauling lumber, groceries, steel, and all other items and necessities incidental to modern society, 2 industry, and commerce. By certified letter dated February 13, 1989, the Biglers first complained to OVC about the volume of truck traffic on State Route 148, the hours of truck operation, the noise associated with that traffic, alleged excessive braking by the trucks, citizen band radio interference affecting telephone and television reception, and increased dust and dirt in the environment. In that letter, the Biglers gave OVC a two-week 3 deadline to take care of the matter to their satisfaction. OVC responded in a good faith manner by certified letter dated 2 OVC's truck traffic is handled pursuant to contract by two local common carriers, namely, (1) R & R Trucking Company (which is a subsidiary of Ruscliff Trucking Company) and (2) Emory Rothenbuhler & Sons Trucking Company. These trucking companies were named in the complaint as defendants. The plaintiffs, on or about August 30, 1990, settled and dismissed all claims against these trucking companies. 3 At one end of the Bigler property, there is a sharp bend in State Route 148 with a drop in elevation of 40 feet over a distance of 200 feet. - 7 - February 21, 1989, seeking a meeting with the Biglers to discuss the complaints and work toward a mutually agreeable result. Through the end of March, 1989, representatives of OVC met with the Biglers on four separate occasions. As a result of these discussions, OVC took the following actions with respect to its operations: (1) met with the two trucking companies and demanded that noisy trucks be repaired with better muffler systems or replaced, and that trucks be as quiet as possible; (2) repeatedly instructed the individual drivers to respect legal speed limits and driving conditions, and be courteous to the residents of the area; (3) had the Ohio Department of Transportation repair potholes on State Route 148 to help reduce the clanging of truck beds; (4) posted numbers on all trucks under its control to aid in the future identification of offending OVC related vehicles; (5) required all trucks leaving the mine to be tarped even though it was legal to operate untarped at the Bigler property area; (6) restricted loading of the trucks at the mine to no earlier than 6:45 a.m.; (7) instructed the common carriers to send no trucks past the Bigler property on the way to the mine until after 6:30 a.m.; (8) disciplined drivers who did not comply with the company's guidelines. The Biglers also wrote a letter during this time period of early 1989 to the American Electric Power Company raising complaints about the operation of OVC. American Electric Power - 8 - notified OVC of this and requested that the matter be investigated. OVC's legal counsel wrote a letter to the Biglers asking that they not interfere with their contractual relations while attempting to resolve the pending complaints. The Biglers took great umbrage with this letter from OVC's counsel, interpreting it as a threat by OVC. On July 5, 1989, the Biglers filed their complaint for preliminary and permanent injunctive relief and damages against OVC, R & R Trucking Company, and Emory Rothenbuhler & Sons Trucking Company. The complaint alleged trespass, defamation, intentional infliction of emotional distress, invasion of privacy, and nuisance. The complaint was amended by plaintiffs on December 12, 1989, adding Ruscliff Trucking Company as a defendant. The trial court, on May 24, 1990, merged the request for preliminary and permanent injunctions. Five days prior to trial, the court denied OVC's motion for leave to file a third-party complaint against the State of Ohio. The trial began on August 28, 1990, and concluded on September 11, 1990. The plaintiffs offered the testimony of eight witnesses during their case-in-chief. The defendants offered the testimony of seventeen witnesses during their case- in-chief. The first witness for the plaintiffs was Brian Bigler (R. 34-129, 204-222), who testified in pertinent part as follows: - 9 - (1) the farm has been in the Bigler family since 1883; (2) his date of birth is August 26, 1948, and he is single; (3) his parent's house, where he resides, is 327 feet from State Route 148; (4) he last taught at his full-time high school teaching job in April, 1989; (5) prior to 1988, heavy amount of truck traffic on the road was sporadic; (6) the volume of truck traffic on the road increased dramatically in July, 1988, when State Route 7 along the Ohio River reopened following renovation; (7) the noise from the increased truck traffic was intolerable and almost continuous; (8) truck traffic decreased from October, 1988, until February, 1989, when the harbor facility opened at Powhatan Point and coal was shipped by truck to the waiting river barges; (9) due to the noise from the truck traffic, he became depressed and tired due to shortened sleeping hours and was unable to keep his mind on his work; (10) he sought treatment from psychiatrists in early 1984, 1985, early 1986, and August, 1988, complaining of lack of sleep and anxiety due to short lived coal truck noise and mine operations noise in the area of the farm; (11) truck traffic has fluctuated over the years, but the trucks that operate still make excessive noise; (12) he has no problems with any other types of noise; (13) a strip mine operated next to the farm when he was a child, with some blasting and heavy equipment usage, and his father worked at that strip mine; (14) the operation of the shuttle train to the harbor has reduced coal truck traffic along the route; (15) some trucks still come by the property in the - 10 - middle of the night; (16) his family obtained a permanent injunction against their township prohibiting the extension of a township road through Biglers' property; (17) he doesn't allow trespassers on his property because they upset him; (18) he proposed alternate routes for the truck traffic which would 4 bypass the Bigler property . The second witness for plaintiffs was Dr. David Smith, a psychiatrist from Wheeling, West Virginia, who testified in pertinent part as follows: (1) he first saw Brian Bigler one time in June, 1984, then again on August 24, 1988; (2) Brian was depressed, nervous, and anxious due to coal truck traffic; (3) at the 1988 office visit, he recommended that Brian be hospitalized for a period of time for depression; (4) Brian absolutely refused to be hospitalized or leave the Bigler property area for any period of time; (5) he met with Brian's parents and brother on August 25, 1988, and seeing a supportive family, concluded that hospitalization was not needed to ensure the physical well being of Brian; (6) he first prescribed the medication Xanax to Brian in February, 1989, to help treat Brian's anxiety and depression, 4 The first alternate route of approximately 26 miles in distance would be from the mine, to southbound State Route 145 to Beallsville, to eastbound State Route 556 to Clarington, then northbound on State Route 7 to Powhatan Point. The second alternate route would be from the mine along eastbound State Route 148 to County Highway 5, north to County Highway 56, east to Township Highway 715, north to County Highway 54, east to State Route 7, then east to Kammer or west to Powhatan Point. Both of these proposed routes are unacceptable either because of increased distance or reduced load limits on bridges along the route. - 11 - and the medication seemed to help; (7) he last saw Brian on August 13, 1990, and while Brian still has anxiety, the depression is the larger problem; (8) Brian also was treated for anxiety due to noise from trucks by Dr. Coddington, a fellow psychiatrist in practice with the witness, on April 14, 1986; (9) Dr. Coddington indicated that Brian was an obsessive-compulsive individual who liked order in his life; (10) the witness agreed that Brian was an orderly person, but not obsessively so; (11) Brian was treated for anxiety due to truck noise on March 14 and 25, 1985; and April 15, 1985, by Dr. Hill, a fellow psychiatrist in practice with the witness; (12) medications prescribed by Dr. Hill did not seem to be helping, so Dr. Hill recommended that Brian see a doctor at the Community Guidance Center; (13) in 15% of patients using Xanax, the medication can cause the depression to worsen; (14) he never took a detailed history of Brian; (15) on a visit to the Bigler home, many trucks passed the farm with some being louder than others, but the noise was not as bad as a jet airplane passing overhead; (16) a reduction in the traffic may not help Brian's medical condition. The third witness for plaintiffs was Dennis Bigler, the brother of Brian and husband to Alexa Bigler, who testified in pertinent part as follows: (1) he was born on November 29, 1955, and is employed as the Director of Public Services and Grants Administrator for the City of St. Clairsville, the county seat of Belmont County; (2) his home on the Bigler property is 425 feet from State Route - 12 - 148 and across the road from Brian's home; (3) there was sporadic heavy traffic on the road in the early 1980's, and was reasonable up to 1988; (4) he and his family have lost sleep and have altered their living arrangements in the home due to the noise from the trucks which operate at times early in the morning until late at night; (5) suggested an alternate route be found to 5 alleviate some of the truck traffic along State Route 148 ; (6) creating a barge facility at Kammer would be cost prohibitive, but public monies are allegedly available to help construct one; (7) the volume of truck traffic on State Route 148 has fluctuated; (8) it would be less economical to use the proposed alternate routes; (9) trucks besides those operated under 6 contract to OVC may have jake brakes ; (10) he was prescribed the medication Xanax. 5 Another alternate route proposed would be from the mine eastbound on State Route 148 to State Route 9 (which is west of the Bigler farm), northbound on State Route 9 to State Route 147, eastbound to Bellaire, Ohio, and State Route 7 on the Ohio River. This route to Bellaire alone is approximately 20 miles in length. From Bellaire to Powhatan Point is an added 13 miles. Besides adding more mileage and turns than the regular route along State Route 148 from the mine to Powhatan Point, State Route 9 has a long hill to climb which is more hazardous to heavy vehicle traffic due to the steep incline, which also creates greater wear and tear on the trucks. These factors would increase the rate charged for transportation, thereby increasing the cost of the coal, thereby making the coal from OVC less competitive in the marketplace. 6 A jake brake is a mechanical braking device which uses the engine to rapidly decelerate the vehicle. It is the alleged overuse of this type of braking which contributes to the noise the Biglers find objectionable. - 13 - The fourth witness for plaintiffs was Jean Bigler, the wife of Howard Bigler and mother of Brian and Dennis Bigler, who testified as follows: (1) she has anxiety and sleeplessness and has been prescribed Xanax by their family physician, Dr. Kirkland; (2) she can't stay outside for long periods of time due to the noise; (3) the area used to be a quiet and peaceful place to live; (4) there is just too much traffic. The fifth witness for plaintiffs was Howard Bigler, the husband of Jean Bigler and father of Brian and Dennis, who testified as follows: (1) he was born on January 14, 1922, and has been retired since January of 1985; (2) during his working career, he had worked in the mining industry and at a large local aluminum manufacturer and processor; (3) at one point, when his sons were children, he was the foreman at the coal strip mine which operated next to the Bigler farm; (4) he has been prescribed Xanax because he complains of excessive tiredness and he finds it difficult to sleep due to the noise; (5) the volume of truck traffic along State Route 148 fluctuates; (6) trucks from the aluminum processor, hauling aluminum pellets, go past the Bigler property at times; (7) the shortest route from the mine to the harbor facility at Powhatan Point is State Route 148. The sixth witness for plaintiffs was Robert Hill, a community planner and landscape architect from Strongsville, Ohio, who was hired by plaintiffs to evaluate the impact to the - 14 - Bigler property of coal traffic along State Route 148. In his evaluation, Mr. Hill used: traffic counts prepared by the Ohio Department of Transportation for the four-year periods ending in 1976, 1980, 1984, and 1988; the United States census for 1980; and traffic accident reports from the Ohio Department of Highway Safety; and hauling records from OVC. From these sources of information, Mr. Hill noted that: (1) the average daily traffic along State Route 148 for the period of 1988 to 1990 was 1,000 vehicles, and only 7% of those vehicles, to-wit, 70, were trucks; (2) during that same period of time, the average daily amount of truck traffic on all state routes in Belmont County was 13.6%; (3) from November, 1989, through February, 1990, the average number of loaded coal trucks to or from the mine was 200, which makes OVC coal truck volume 35% of the average daily traffic passing the Bigler property; (4) from March, 1990, through June, 1990, OVC loaded coal trucks averaged 261 trips per day past the Bigler property; (5) total truck related accidents on State Route 148, between State Route 9 and County Highway 56, were: (a) three in 1988; (b) six in 1989; (c) seven for the first six months of 1990 (with one fatality); (6) the latest figures when the coal train shuttle was operating show the average daily truck traffic along State Route 148 to be 106 loaded trucks, which is still 22% of the average daily vehicle traffic passing the Bigler property; (7) a total amount of 90- 106 trucks per day passing the Bigler property would be a - 15 - reasonable figure; (8) in 1984, average daily truck traffic on State Route 148 was 260 trucks, or 19% of the county average along all state routes, which dropped back to 7% after 1984; (9) at the time of trial, OVC truck traffic is 22% of the average daily traffic going past the Bigler property; (10) he can't predict the rate of future growth or vitality of OVC; (11) transportation cost is a factor in pricing a job, and all the proposed alternate routes are longer in distance; (12) in the last twelve years, total traffic along State Route 148 has decreased by 40%; (13) in his opinion, 12-15% truck traffic along a given highway is reasonable; (14) if transportation costs increased, OVC would probably have to raise its prices, which would probably put OVC at an economic disadvantage with other coal producers; (15) State Route 9 is steeper than State Route 148; (16) his report did not take into consideration whether other state routes had active mines on their right of way. The seventh witness for the plaintiffs was William Braman, a real estate appraiser from Lakewood, Ohio, who inspected the Bigler property in February, 1990, and testified at trial as follows: (1) the Bigler property has very good soil; (2) the structures on the property had better than usual care with exceptionally good maintenance; (3) that without the current traffic volume burden along the road, the property would be appraised at $566,000; (4) that with the current traffic volume burden, the property would be appraised at $495,000 (a difference - 16 - of $71,000); (5) less truck traffic in the future could reduce the amount of property depreciation in the evaluation. The eighth and final witness for plaintiffs was Douglas Golden, a railroad transportation consultant who was asked by plaintiffs to analyze the movement of coal from the mine to Kammer and determine the available means of transportation for that coal. Mr. Golden testified as follows: (1) the only available means of transporting coal in the area of Belmont County and the mine is by rail, river barge, and/or truck; (2) the Kammer plant has no barge facility; (3) trucking costs have risen; (4) American Electric Power was going to consider barge operations in the future at Kammer; (5) the OVC shuttle train runs one million tons of coal per year to the river barges at the harbor; (6) a barge facility at Kammer would cost between $150,000 - $450,000 depending on complexity and permanency; (7) the decision on whether to build a barge facility at Kammer does not rest with OVC; (8) the OVC trucking contract for the Kammer run was one dollar per ton less than other contractors, which is a good rate; (9) OVC is not the main supplier of coal to Kammer, and their spot contract may not be renewed in the future. The plaintiffs then offered their numerous exhibits into the record and rested. The defense moved for judgment in its favor, arguing that a common pleas court has no power to restrict the legal use of a state highway. The court overruled this motion. - 17 - The defense then offered the testimony of seventeen witnesses during its case-in-chief. The first defense witness, Alfred Kopec, a district operations engineer for the Ohio Department of Transportation, testified as follows: (1) all state roads have an 80,000 pound maximum load limit; (2) there are no laws limiting the number of vehicles using a road or the number of trucks one company can operate on a road; (3) if a certain road experiences dramatically increased truck traffic, his office would review that road with the respective county superintendent and take the necessary action to keep the road open; (4) maintenance/management records for State Route 148 from January 1, 1985 through May 31, 1990, indicate no significant problems; (5) higher truck traffic relates to higher road maintenance costs, and this has not been evidenced on State Route 148; (6) some roads may have load limits because of road deterioration; (7) State Route 148 has not been designated as a high accident area by the State (Note: five accidents per year for five years qualifies as a high accident area); (8) his office has received no complaints on the safety of the hairpin turn at the Bigler property; (9) State Route 148 is a two-lane, asphalt road, eighteen feet wide (each lane is nine feet wide). The second defense witness was Thomas Bell, the mayor of Powhatan Point, Ohio, and an underground locomotive operator at the nearby Quarta #4 coal mine. Mr. Bell testified as follows: - 18 - (1) he lives just off State Route 7, a bit north of the intersection with State Route 148; (2) he has noticed some increase in truck traffic in the last two years; (3) about 7,000 vehicles per day, of which 40% are trucks of all types, use State Route 7 which has been improved recently and follows the Ohio River; (4) the area had been devastated by layoffs in the coal mine industry; (5) State Route 148 is the only feasible route, financially and time wise, between the OVC mine and Powhatan Point; (6) without coal trucks, the OVC mine would be forced to close; (7) his city enacted a truck tarp ordinance before OVC ever started hauling along State Route 148; (8) the OVC mine is a high sulphur bituminous coal mine, the type which is targeted by federal clean air legislation. The third defense witness was Steven Rice, OVC's manager of marketing and sales, who testified as follows: (1) detailed the handful of customers OVC presently serves; (2) for a given spot contract, eighty to one hundred separate bids are put by coal producers; (3) the mine's output, and manner and timing of the delivery of that output is dictated by the demands of the customer, which can fluctuate on very little advance notice; (4) OVC has shipped to Kammer on Saturday twice in two years, and never on a Sunday; (5) one can't precisely predict the dynamics of demand; (6) after 1991, Kammer has no firm commitment to OVC; (7) OVC ships its coal in the most economical method so as to offer the best price for its coal; (8) OVC would increase rail - 19 - traffic to the harbor if demand is present for the product; (9) OVC uses trucks to supplement the river barge loads; (10) the amount of trucking by OVC fluctuates depending on the day and need for the coal; (11) ground storage is being prepared at the harbor; (12) the market bears $3.00 per ton for transportation costs; (13) he has spoken with Kammer representatives as early as February, 1989, and they are not willing to make the capital improvements for barged delivery at Kammer, even though OVC would prefer to barge the shipment; (14) OVC presently produces about three million tons of coal per year; (15) OVC needs trucking to be available in the event rail transportation is interrupted and to keep rail contract negotiations in good faith and competitive; (16) the proposed alternate routes are not plausible, costs would go up; (17) OVC is only marginally competitive at present; (18) at one point in time, four other mines used State Route 148; (19) all sorts of other non-OVC heavy hauling is done on State Route 148. The fourth witness for the defense was Fred Wertz, a professional business manager who left OVC in June, 1989, as the manager of administrative services. Mr. Wertz testified as follows: (1) he negotiated OVC's truck contracts with the common carriers mentioned earlier; (2) pricing was very tight in this contract; (3) he reviewed the certified letter from the Biglers in early 1989, and, Mr. Murray, acting against the advice of the witness, instructed he and the mine manager to deal with the - 20 - Biglers in good faith as a courteous neighbor; (4) detailed the actions taken by OVC as a result of the complaints; (5) he came to the conclusion that there was no reasoning with the Biglers, who wanted to shut the trucks down along State Route 148; (6) he was not aware of the common carrier's internal finances when negotiating the contracts; (7) one truck driver complained that the Biglers tried to blind him with automobile headlight beams as he passed the Bigler property; (8) there has always been truck traffic along State Route 148, increasing after OVC began operations. The fifth witness for the defense was Larry Vucelich, a lamp man at the mine and president of United Mine Workers Local #1810, who testified as follows: (1) in 1972, there were seven mines in the union district #6 encompassing southeast Ohio and part of West Virginia's panhandle, employing 16,000 miners; (2) presently, there are two mines operating in district #6 employing 3,400 miners; (3) UMW Local #1810 had 741 members in 1982, presently, it has 340 members; (4) in their situation, the long wall method of mining has created jobs; (5) without trucks, there would be no jobs; (6) but for Mr. Murray, the mine would have shut down. The sixth witness for the defense was Robert Houston, a shuttle car operator at the mine for the past nineteen years and the vice-president of UMW Local #1810. Mr. Houston corroborated the testimony of Mr. Vucelich. - 21 - The seventh witness for the defense was Gregory Smith, a heavy equipment operator at the mine for the past eighteen and one-half years and a safety committeeman at UMW Local #1810. Mr. Smith corroborated the testimony of Messrs. Vucelich and Houston. Additionally, Mr. Smith stated that Ohio is the largest consumer of coal of any state, and State Route 148 is the safest route to use. The eighth witness for the defense was Maynard Saint John, OVC's mine manager and superintendent, who, while corroborating the testimony of Mr. Wertz, testified as follows: (1) OVC presently mines 3-3.2 million tons of coal, with sales matching capacity; (2) without trucking available, OVC would be precluded from producing blended coal; (3) the proposed alternate routes are not economical and are less safe than State Route 148; (4) without usage of State Route 148, OVC could lose bids and possibly be put out of business; (5) he was involved with the Bigler negotiations; (6) other trucks besides OVC shipments use State Route 148; (7) we had trouble convincing the Biglers of our sincerity; (8) OVC still attempts to keep complaints to a minimum; (9) OVC did not dictate the route to be used when negotiating contracts with the common carriers; (10) the mine's rail link was interrupted from October, 1987, to June, 1988, during which time OVC trucked coal to Martins Ferry, Ohio; (11) future sales to present spot customers is not guaranteed; (12) he was aware of only one all-night haul from the mine, in June of - 22 - 1989; (13) State Route 9 is not used much for hauling due to severe incline. The ninth witness for the defense was Richard Van Curen, a real estate appraisal expert who grew up in Belmont County, who testified as follows: (1) he visited the area over a three-day period in late June, 1990; (2) the Biglers would not allow him to take any photographs while on their property; (3) he appraised the farm and its structures at $265,000; (4) the relatively small size of the farm detracted from its valuation; (5) after interviewing several other recent buyers/owners of property along State Route 148 (going back several years in time), the witness determined the amount of traffic, including OVC's, had no measurable effect upon the value paid for the property; (6) he had Mr. Hill's report at the time of the witnesses report; (7) traffic volume alone is not a sufficient basis to appraise real estate. The tenth witness for the defense was Robert Visnik, OVC's coal transportation manager, who testified as follows: (1) the ground facility at the harbor, which would eliminate trucking to the barges, should be on line by the end of 1990; (2) Conrail is trying to locate three more rail cars for our shuttle train; (3) trucks leave the mine at 7:00 a.m. to go to Kammer; (4) Mr. Murray asked the witness to personally examine the proposed alternate routes; (5) subsequent to an inspection, the witness concluded that the proposed alternate routes were less safe, had - 23 - more hills and sharp curves, and passed more homes/businesses/town centers than State Route 148; (6) none of the proposed alternate routes were as economical to use as State Route 148; (7) other non-OVC mine traffic and unidentified trucks passed the Bigler property prior to the 6:00 a.m. standard employed by OVC following the complaints by the plaintiffs; (8) the OVC enforcement of the 6:00 a.m. standard hurt the OVC truckers because some would have one less load per day as a result; (9) the sharp curve at the Bigler property is common to roads in the county and can be negotiated by two trucks, in opposite directions, simultaneously; (10) he doesn't know if he will need to truck coal to supplement the river barges until 6:30 - 7:00 a.m., when he arrives at the harbor; (11) the 6,000 tons of crushed coal to Kyger Creek, about 260 one-way loads in total, is trucked to the harbor over a two-day period and then river barged down river to the power plant; (12) the first truck on the Kyger Creek run would leave the mine around 6:20 a.m. to arrive at the harbor by 7:00 a.m., and the last truck would leave the harbor just prior to 3:00 p.m.; (13) the Kyger Creek authorities give us one week prior notice to when they want their coal shipped and delivered. The eleventh witness for the defense was Dennis Coe, the manager and truck supervisor at R & R Trucking Company since August, 1988, who testified as follows: (1) his employer is headquartered in Barnesville, Ohio; (2) he drives State Route 148 - 24 - daily to visit customers and oversee his duties; (3) normally, OVC uses 20-25 of his company's two hundred available trucks daily; (4) shipping by OVC fluctuates according to its customers needs; (5) only thirty trucks are kept at the Barnesville terminal, the remainder coming from over a four county area; (6) his employer hauls along State Route 148 for other companies, some at night and early morning hours, to-wit, Quarta #4 mine; (7) much of his employer's traffic going past the Bigler property is not related to OVC; (8) he visited the Biglers at the farm three times in the Spring of 1989 to deal with complaints and observed no problems during those visits; (9) he repeatedly counseled his drivers to avoid harassment of the citizenry; (10) there are no other reasonable alternative routes; (11) his company would be forced to double the charge to OVC for services if the proposed alternate routes are used; (12) his employer never hauled coal, loaded or unloaded, on State Route 9 because of the severe incline; (13) his firm recently amended its contract with OVC to help pay for increased fuel costs; (14) the Quarta #4 mine is near Clarington, Ohio, and his employer uses 70-100 trucks per day at that mine; (15) the transportation cost per ton of coal is derived from the factors of the volume, distance, and road conditions. The twelfth witness for the defense was John J. Mitchell, a semi-retired miner, who testified that: (1) he lives on State Route 7 (north) near the harbor facility at Powhatan Point, some - 25 - forty-eight feet from the road; (2) he is the clerk of York Township; (3) a variety of trucks use State Route 148, and they don't bother him; (4) the present OVC route to Kammer is the most direct route; (5) he has known the Biglers for forty-five years. The defense then proffered the testimony of Mr. Mitchell to the effect that the Biglers are attempting to close a public road in State Route 148, having done it in the past in the case of Township Highway 125 near their property. The thirteenth witness for the defense was George Lucas, the former owner of the strip mine previously located one-fourth mile from the Bigler farm, who testified as follows: (1) his house is located along State Route 148 about two miles west of Powhatan Point, some 286 feet from the road; (2) there has been a great deal of coal hauling along State Route 148 in the past; (3) he did blasting at the strip mine; (4) a wide variety of products are hauled by truck along State Route 148; (5) the amount of traffic on State Route 148 at present is comparable to when State Route 7 was closed in the mid-l980's, and State Route 7 traffic was detoured onto State Route 148; (6) in 1979, the Biglers used a propane cannon at their farm for several weeks to scare birds away from the crops; (7) this cannon would explode every 3-4 minutes from dawn to dusk, creating such a noise that the witness said he thought he was back on Guadalcanal; (8) the truck traffic doesn't bother him; (9) the motorcycles cause him more problems; (10) the present route to Kammer by OVC is the best route; (11) - 26 - his step-children own a forty-acre farm adjoining the Bigler property, and they use Township Highway 125 for access to the small farm. The fourteenth witness for the defense was Linda Lucas, who has lived for the past twenty years on State Route 148, one and one-half miles east of the OVC mine, less than one hundred feet from the road. Ms. Lucas stated: (1) there has always been truck traffic on State Route 148, and this traffic has never bothered her; (2) motorcycles are noisier than the trucks; (3) people ought to be able to use a state road; (4) the present Kammer route by OVC is the safest route to use. The fifteenth witness for the defense was Ida Brubaker, an owner-operator of a food mart/gasoline station on State Route 148, three miles east of the Bigler property, who testified: (1) she lives behind her store about one hundred feet from the road; (2) she also owns some 108 acres of land with a summer home and a lake one quarter mile from the Bigler property; (3) the summer home is less than one hundred feet from State Route 148; (4) all her relatives use the summer place and have never complained about the noise; (5) truck noise is not a problem for her either at the summer home or her business; (6) just prior to the trial herein, Brian Bigler threatened to prosecute anyone who touched his property; (7) on three separate Sundays in the mid-summer of 1990, she witnessed Brian Bigler, who was supposedly unable to - 27 - work, mowing grass on the Bigler property; (8) the Biglers were always taking pictures of anybody near their property. The sixteenth witness for the defense was Archie McGrew, a retiree who has lived 315 feet beside State Route 148 since 1946, about five miles east of the Bigler property. Mr. McGrew stated: (1) there has always been quite a bit of coal hauling along State Route 148; (2) he has noticed little increase in the volume of truck traffic over the last ten years; (3) he has no problems with noise from the trucks or trouble sleeping, that motorcycles in the area are much noisier; (4) the present route used by OVC to the Ohio River is the best route to be used, it is the shortest and least dangerous; (5) he goes to Florida from mid- December to mid-April. At that point, the defense proffered the testimony of (1) Mr. Brubaker regarding the Bigler reputation of being obsessed about their property lines and property rights and (2) Mr. Lucas regarding the Bigler's antagonistic and threatening attitude toward he and his family to prevent any usage of any Bigler property for snowmobiling in the winter. The seventeenth, and final, witness for the defense was Robert E. Murray, president and CEO of OVC. (R. 1106-1242) Mr. Murray corroborated earlier defense testimony and also stated: (1) he has the equivalent of an MBA degree from the Harvard University Graduate School of Business; (2) he lived in Belmont County for twenty-eight years, rose through the ranks at North - 28 - American Coal Company from miner to the position of president, was fired as president in the mid-1980's; (3) all coal mines use trucks to move their product to market; (5) after buying the mine, he learned that Cravat Coal Company had problems with the Biglers from 1976 until 1986 when it shut down operations; (6) he dealt with the Biglers in good faith, as a good neighbor, and to this day has worked to minimize legitimate complaints; (7) the Biglers never called the mine to complain about particular offending trucks, though requested to do so; (8) he installed a truck washing system valued at $40,000 at the mine to eliminate dirt from the trucks; (9) ordered all trucks to be tarped; (10) he considers the Biglers to be totally unreasonable, litigious people, interested in only seeing no trucks on the road near their property; (11) there are no acceptable alternate routes to take the place of State Route 148; (12) blending of coal will require trucking; (13) he has no control over when a customer wants a delivery; (14) he needs trucking for flexibility to respond to customer demand and situations beyond his control; (15) his debt service on the principal and interest owed to his creditors presently runs between $9 - $10 million per year, with a total outstanding debt of $68,000,000.00; (16) OVC is not the only mine hauling coal along State Route 148; (17) two other mines presently truck products along State Route 148 at night; (18) his goal for OVC is to produce 4.3 million tons per year for the next fifty years. - 29 - The defense then rested. A summary of three depositions of persons not appearing at trial was admitted by agreement as Plaintiffs' exhibit number 42. Closing arguments were then conducted, followed by a request for relief by the plaintiffs which would encompass the volume of trucks, their operating hours, and days of operation. The matter was then taken under advisement by the court. On October 17, 1990, the court issued its opinion and judgment entry granting injunctive relief in part by restricting the hours and numbers of truck shipments by OVC along State Route 148. Journal Vol. 1303, pages 97-104 (a copy of which is attached to the appellees' brief). A stay of execution of judgment was effected by the posting of an appeal bond by OVC on October 18, 1990. OVC filed its timely notice of appeal on November 14, 1990. One assignment of error, which contains numerous reasons for 7 relief, is presented for review: THE INJUNCTION ENTERED IN THIS CASE IS ERRONEOUS AS A MATTER OF LAW AND PUBLIC POLICY. In the present case, the Biglers, as private individuals, have sought to enjoin the legal use of a public highway by claiming that the trucking activities associated with OVC on that highway constitutes a common-law public nuisance. The trial 7 Pursuant to App. R. 12, the sole assignment will be addressed. The sub-arguments will be addressed as needed for affirmance or reversal. - 30 - court found that the sheer volume of trucks used on behalf of OVC along that public highway, with the attendant increased noise and dust, was an unreasonable use of that highway under the circumstances. After balancing the rights and obligations of the parties, the trial court, to abate the allegedly excessive noise of the trucks, limited the total number of daily round trip shipments by OVC on State Route 148 to one hundred (100) between the hours of 6:30 a.m. and 4:30 p.m., effective January 5, 1991. See Opinion and Judgment Entry of the trial court, Journal Vol. 1303, pages 97-104. This effectively limits OVC to no more than fifty loaded shipments along that route during the imposed time period, with no limits on the number of shipments outside the imposed time periods. The trial court, in its opinion, specifically found that it would be inequitable to mandate OVC trucking to the proposed alternate routes. The general rule in Ohio has always been that "private individuals have no right to an injunction to abate a public nuisance." Clabaugh v. Harris (1971), 27 Ohio Misc. 153, paragraph one of the syllabus. In order to enjoin the use of a public highway and abate a public nuisance thereon, the complaining party "must establish that they have suffered irreparable injury to their civil or property rights distinct from that suffered by the public at large." Widmer v. Fretti (Lucas, 1952), 95 Ohio App. 7, 15. Also, see Parrot v. Cincinnati, Hamilton & Dayton Ry. Co. (1858), - 31 - 10 Ohio St. 624. In short, the complaining party must establish the existence of a private nuisance which, by its nature, requires an injury different in kind and degree from that suffered by other property owners whose property abuts State Route 148. See generally 71 ALR 4th 13. In this case, the plaintiffs complained that the increased levels of truck traffic along State Route 148 generated an intolerable amount of noise, causing the family to suffer anxiety, discomfort, annoyance, and sleeplessness. It is this allegedly intolerable amount of noise which is the injury complained of, yet this very noise associated with the volume of trucking is one experienced by all those persons living along State Route 148. Although the Biglers may suffer to a greater degree as a result of that noise, that special injury is not different in kind from that experienced by the general public living along State Route 148. Accordingly, the Biglers are not entitled to injunctive relief on a cause of action for a public nuisance due to their lack of standing. Appellant has also urged this court to reverse the judgment of the trial court based on a federal pre-emption argument. OVC argues that the injunction, by limiting the noise emissions created by the trucks of the common carriers operating on State Route 148, violates the Noise Control Act contained in 42 U.S.C. Section 4917, et seq. We agree. 42 U.S.C. Section 4917(c)(1) provides: [N]o state or political subdivision thereof may adopt or enforce any standard applicable - 32 - to the same operations of such motor carriers, unless such standard is identical to the standard applicable to noise emissions resulting from such operation prescribed by any regulation under this section. The permissible decibel level allowed interstate motor carriers is contained in 40 C.F.R. Section 202.20. There is no evidence in the record that the common carriers operating along State Route 148 have been, or presently are, operating in violation of the prescribed decibel limits. Plaintiffs admitted as much in their opening statement to the court. The sole means available by an individual to enforce the requirements of the Noise Control Act is pursuant to federal regulation, to-wit, 40 C.F.R. Section 210.1. The trial court, a political subdivision of the state through its injunction effectively, and by implication, institutes a standard for noise emissions which is not identical to the standards promulgated under the Noise Control Act. Thus, the injunction may not be enforced against the common carriers operating past the Bigler property. Appellant also raises the sub-argument that the trial court's finding that OVC's use of State Route 148 was unreasonable. This sub-argument requires this court to review the manifest weight of the evidence. Under this standard, judgments supported by some competent and credible evidence going to all of the essential elements of a case will not be reversed. C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St. 2d 279. - 33 - In arriving at its finding of unreasonable use, the trial court placed great emphasis on isolated shipping figures of large volumes on several days by OVC; plaintiffs' expert's opinion that a use of one hundred vehicles per day would be reasonable and that, on average, OVC ships ninety-three vehicles along the route per day; the daily average for truck traffic along on all state routes in Belmont County. It is also noteworthy that the trial court would not mandate the use of any of the proposed alternate routes by OVC. From the detailed facts previously set forth, it is abundantly clear that: (1) OVC had no control over when or in what quantity one of its coal customers would want delivery of the product; (2) all coal companies use trucks to transport their product to market; (3) the Kyger Creek power plant shipment alone, which must be trucked, would violate the one hundred vehicle limit imposed by the injunction; (4) OVC went to great lengths and expense, in both administrative and capital outlay, to minimize to the greatest extent reasonably possible, the complaints raised by the Biglers: (5) in reviewing the average daily amount of truck traffic on all state routes in the county, plaintiffs' expert did not take into consideration whether an active mine was operating along those other routes; (6) the amount of truck traffic along State Route 148 has fluctuated over the years, periodically rising above the county average due to increased mine production or interruption in the transportation - 34 - network, and then subsiding when those conditions are removed; (7) the coal business is highly competitive and transportation costs are a significant factor in the price of the product, the ability to obtain or keep customers, and ultimately the continued viability of the mine; (8) trucking is required at OVC to meet unforeseen demand and emergencies and to service customers where other means of transportation are not economical or non-existent; (9) other mines and commercial concerns of every type ship their product along State Route 148, many times at night or early morning; (10) the accident figures cited were not linked to OVC truck traffic in particular, but were proximately caused by truck traffic in general along State Route 148; (11) other persons living along the route, many of them in closer proximity to the road, had no problem with the volume of trucks; (12) witnesses knowledgeable about the area were in agreement that the route was the safest route available. Under these facts, we conclude that the court abused its discretion in finding that OVC's legal use of the route was unreasonable under the circumstances and weight of the evidence. Having determined from the foregoing sub-arguments that the sole assignment of error should be reversed, we will not address the several remaining sub-arguments presented by appellant as issues raised which also urge reversal. See App. R. 12. Assignment affirmed. Judgment reversed. - 35 - This cause is reversed. It is, therefore, considered that said appellant(s) recover of said appellee(s) its costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. DAVID T. MATIA, C.J., and JOHN F. CORRIGAN, J., CONCUR. JAMES D. SWEENEY JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .