Angell v. Continental Oil Co.

• Decision Date: 03 May 1911
• Citation: 19 Idaho 746,115 P. 692
• Parties: HANS B. ANGELL et al., Respondents, v. CONTINENTAL OIL CO., a Corporation, Appellant
• Court: Idaho Supreme Court

115 P. 692

19 Idaho 746

HANS B. ANGELL et al., Respondents, v. CONTINENTAL OIL CO., a Corporation, Appellant

Supreme Court of Idaho

May 3, 1911

GASOLINE-CARRYING ON BUSINESS-INJUNCTION PENDENTE LITE-LEGAL DISCRETION.

(Syllabus by the court.)

1. The granting of a preliminary restraining order during the pendency of an action is in the sound discretion of the court.

2. Held, that the court did not abuse its discretion in granting a temporary restraining order.

3. Held, that the defendant had the right to remove the gasoline it had in said tanks at the date of granting said order without making it liable for contempt.

APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. Robt. N. Dunn, Judge.

Application for restraining order to restrain defendant from storing gasoline and transacting a gasoline business on certain premises adjoining the city of Coeur d'Alene. Temporary restraining order granted. Affirmed.

Order affirmed, with costs of this appeal in favor of the respondent.

Whitla & Nelson, for Appellant.

"An injunction pendente lite is very like an execution before judgment, and ought not to be issued except in clear cases of right. "(Amelia Mining Co. v. Tenn. Coal I. & R. Co. 123 F. 811; Sellers v. Parvis Williams Co., 30 F 164.)

"A court of equity will not restrain by injunction any lawful business, because it is supposed or alleged that such business will be a nuisance and that it cannot be carried on so as not to be such." (Duncan v. Hays, 22 N.J Eq. 25.)

"To sustain an injunction inhibiting business not per se constituting a nuisance, it must be shown that the danger of injury from it is impending and imminent, and the effect certain." (Pope v. Bridgewater Gas Co., 52 W.Va. 252, 43 S.E. 87.)

It must be made to appear beyond all ground of fair questioning that it will be so conducted and that it will be a nuisance. (McGinnis v. Friedman, 2 Idaho 393 (361), 17 P. 635; Francisco v. Furry (Neb.), 118 N.W. 1102.)

It is not believed any well-considered case holds that the storage of gasoline and coal oil in suitable tanks constitutes a nuisance per se. (Harper v. Standard Oil Co., 78 Mo.App. 338.)

Lynn W. Culp, for Respondents.

The issuance of preliminary injunctions rests in the sound discretion of the court, and the exercise of this discretion in granting or refusing the injunction will not, as a general rule, be reviewed on appeal, or otherwise controlled or interfered with. (16 Eng. & Am. Ency. of Law, 345, par. 2; Allen v. Pedro, 136 Cal. 1, 68 P. 99; Price v. Grice, 10 Idaho 443, 79 P. 387; Heinze v. Boston etc. Mining Co., 30 Mont. 484, 77 P. 421.)

SULLIVAN, J. Ailshie, Presiding J., concurs.

OPINION

SULLIVAN, J.

This action was brought to enjoin the defendant oil company from maintaining its oil tanks upon lot 17 in section 14, township 50 N., of range 4 west, B. M., in Kootenai county.

The complaint was filed on October 21, 1910, and on that day the court made an order that the oil company appear before the judge of the eighth judicial district on the 27th of October, 1910, and show cause, if any it had, why it should not be perpetually enjoined and restrained from keeping, using and occupying the north half of said lot 17 as a storage plant for the purpose of storing there oil either of a combustible, explosive or of bad-odor emitting nature; and thereafter the hearing on said matter was continued until the first day of November, 1910. On October 26, 1910, the plaintiffs asked the court to grant a temporary restraining order, enjoining the defendant oil company from storing, drawing off or handling upon said lot 17 any gasoline until such time as the hearing under the court's order to show cause why a perpetual injunction should not issue could be heard and determined.

The motion was based upon the affidavit of the plaintiff Angell which affidavit shows that said oil company had completed its said oil plant for the storage and distribution of oil, consisting of two large tanks, each of 14,000 gallons capacity, and three wooden frames covered with sheet iron and having wooden floors; that one of said tanks was by said defendant being rapidly filled with kerosene, and that the other tank was intended to be immediately filled with gasoline, "a distillation of crude petroleum, very volatile, highly inflammable and explosive"; that one of the said storage buildings was situated not more than 120 feet from affiant's residence and home; that it was the purpose of the oil company to there store cans and barrels of different capacity filled with gasoline; that the large portable tanks used for conveying kerosene to said oil plant where it is drawn off by means of hose about two and one-half inches in diameter are placed within ninety feet of affiant's residence, and that during the time the oil is being drawn off, large quantities of oil leak and escape in the air and fall upon the ground around said portable tanks,...