City of Des Moines v. Manhattan Oil Co.

• Decision Date: 27 October 1921
• Docket Number: 33971
• Parties: CITY OF DES MOINES, Appellant, et al., Interveners, v. MANHATTAN OIL COMPANY et al., Appellees
• Court: Iowa Supreme Court

184 N.W. 823

193 Iowa 1096

CITY OF DES MOINES, Appellant, et al., Interveners, v. MANHATTAN OIL COMPANY et al., Appellees

No. 33971

Supreme Court of Iowa, Des Moines

October 27, 1921

SUPPLEMENTAL OPINION JUNE 23, 1922.

Appeal from Polk District Court.--LAWRENCE DE GRAFF, Judge.

Reversed and remanded.

C. W Lyon, Edwin J. Frisk, Chauncey A. Weaver, and Russell Jordan for appellant.

N. E. Coffin and D. Cole McMartin, for appellees.

Stipp, Perry, Bannister & Starzinger, Amici Curiae.

Blake & Blake, for interveners.

WEAVER, J. EVANS, C. J., PRESTON and FAVILLE, JJ., concur. DE GRAFF, J., takes no part.

OPINION

THE opinion sufficiently states the case.--Reversed.

WEAVER J.

Suit in equity by the city of Des Moines, to enjoin the defendants from the erection and maintenance of a gasoline and oil filling station upon certain property owned by the defendant Macomber, and leased by him for that purpose to his codefendants, Manhattan Oil Company and J. P. Howe. In support of plaintiff's demand for injunctive relief, it is alleged that the property in question is within a restricted residence district, established by the city under authority of Chapter 138, Acts of the Thirty-seventh General Assembly, and further, that the maintenance of such gasoline and oil filling station and the carrying on of said business will be detrimental to the health, comfort, and general welfare of the people making their homes in said district, and unless enjoined, as prayed, will constitute a nuisance.

The defendants deny the constitutional validity of the statute above cited, as well as of the city ordinance purporting to establish the restricted district, and deny that the maintenance and operation of the proposed station will create a nuisance. Other matters are pleaded, which will have our attention in the progress of this opinion.

Before the cause came on for trial, the Cottage Grove Avenue Presbyterian Church, together with several other owners of property in the district, intervened, and united with the plaintiff in its prayer for an injunction. There was a trial to the court, which found for the defendants and dismissed the petition, and plaintiff appeals.

It appears without controversy that, on or about September 8, 1919, a movement was begun by resident property owners within the area bounded by Twenty-fourth Street, Twenty-fifth Street, School Street, and Kingman Avenue, in the city of Des Moines, to have the same made a restricted residence district, as provided in the statute already mentioned. A petition addressed to the mayor and council of the city was prepared, signed by 12 of the 14 property owners within the specified area, asking to have the district established. The petition was filed with the city clerk on September 10, 1919, was in due course read to the council, and by it was referred to the street department of the city government. While the matter was thus pending before the council, the defendant Macomber, having acquired some sort of contract or arrangement for the purchase of the lot now in question, entered into a tentative agreement with his codefendants herein to lease the lot to them for the site of a gasoline and oil station, such agreement being conditional upon Macomber's procurement from the city of a building permit for that purpose. Macomber, with knowledge of the pendency of the application to establish the restricted district, made application for the desired building permit, and thereafter, on September 19, 1919, the council, without having yet acted upon the petition of the property owners, passed a resolution granting the permit; but on September 24, 1919, adopted another resolution, rescinding it. On October 1, 1919, the council enacted the following ordinance:

"An Ordinance Designating and Establishing a Restricted Residence District, and Providing a Penalty For the Violation Thereof. Whereas, the general assembly of the state of Iowa has authorized cities under the commission form of government, upon petition of sixty (60) per cent of the owners of real estate in a given district residing in said city, to establish restricted residence districts; and, whereas, on the 10th day of September, 1919, a petition with the requisite number of signers was duly filed with the city clerk and presented to the city council, asking that certain territory between Kingman Boulevard and School Streets on the north and south, and between Twenty-fourth and Twenty-fifth Streets on the east and west, be established as a restricted residence district; now, therefore, be it ordained by the city council of the city of Des Moines:

"Section 1. That the block bounded on the north by Kingman Boulevard, on the west by Twenty-fifth Street, on the south by School Street, and on the east by Twenty-fourth Street, be and the same is hereby designated and established as a restricted residence district.

"Section 2. That no buildings or other structures, except residences, schoolhouses, churches, and other similar structures shall be hereafter erected, reconstructed, altered, repaired, or occupied within said district without first securing from the city council a permit therefor; nor shall any such permit be granted when sixty (60) per cent of the owners of real estate in said district residing in said city object thereto.

"Section 3. Any building or structure erected, altered, repaired, or used in violation of any of the provisions of this ordinance, is hereby declared to be a nuisance, and it is hereby made the duty of the city prosecutor to prosecute all persons violating the provisions of this ordinance with respect to the erection, reconstruction, altering, repairing, or occupying any building or other structure in said district without a permit, and in all cases where the punishment by fine fails to abate the nuisance, he shall cause to be brought in the district court in and for Polk County an action for the abatement thereof. All such prosecutions shall be in the name of the city of Des Moines.

"Section 4. Any person, firm or corporation violating any of the provisions of this ordinance shall be guilty of misdemeanor, and upon conviction, shall be subject to a fine of not less than one dollar, nor more than one hundred dollars for each offense."

There is no dispute concerning the facts thus far related. It further appears in evidence that, at the date of the application to the city council for the establishment of the restricted district, the area included therein was occupied and used exclusively for residence purposes, and was quite generally improved with substantial and comfortable homes. The corner lot in question is at an intersection, from which streets radiate in five directions. Over and upon these streets is a large amount of travel, and the street traffic at this point is often congested to a considerable degree, and collisions and accidents resulting therefrom have occurred on several occasions. On one corner is a small public park, frequented by children and others for purposes of recreation. Here also is the site of the Cottage Grove Avenue Church, which has a new and valuable house of worship, where its congregations and subsidiary organizations and societies gather for worship and instruction. The district is located at a considerable distance from the main business section of the city; but, as is not unusual in towns of considerable size, there are nearer at hand small business establishments or shops, scattered here and there, where they can find lodgment in or around residential neighborhoods. Of these, the only one which can be said to closely approach the district in question is a building used as a telephone exchange, one block south of the street intersection already described. The business of maintaining the proposed filling station involves the keeping of large quantities of gasoline and oil, and dispensing it in retail quantities to owners and drivers of auto cars. The gasoline is stored in steel tanks of about 1,000 gallons capacity each, which are set in the ground, with tops or covers a little below the surface. The oils are kept in containers above the surface. The method of drawing these articles from their containers and transferring them to the cars of the buyers is a matter of common observation. As is also well known, gasoline is highly inflammable, and a violent explosive. The characteristic smell of gasoline, when exposed, is familiar to everyone. The same is true, though perhaps in less noticeable degree, of lubricating oils. It is the claim of the appellees that their methods of storing, keeping, and handling these substances is not only safe, but is such as to suppress or prevent all disagreeable odors; and that the business may be carried on without becoming a source of inconvenience or discomfort to the inhabitants of the neighborhood, or creating a nuisance, in any proper sense of the word. On the other hand, the testimony on the part of appellant tends to show that the offensive odors created by the conduct of a filling station of this character contaminate and pervade the air in their neighborhood to a marked degree, while the drip of stale oil from motor cars which are being filled, and from others waiting their turn to be served, befouls the streets and driveways.

Plaintiffs also contend that the maintenance of the station and the carrying on of such business will serve to increase the congestion of travel and of vehicles at that point, and accentuate the noise and confusion of ordinary street traffic, to the disturbance of the inhabitants, as well as of the church congregations.

Other matters are mentioned in the testimony, but the foregoing is sufficient to indicate the nature of the controversy and to give point to the arguments of counsel on...