Bauernschmidt v. Standard Oil Co. of New Jersey

• Decision Date: 07 December 1927
• Docket Number: 2.
• Citation: 139 A. 531,153 Md. 647
• Parties: BAUERNSCHMIDT v. STANDARD OIL CO. OF NEW JERSEY.
• Court: Maryland Court of Appeals

139 A. 531

153 Md. 647

BAUERNSCHMIDT v. STANDARD OIL CO. OF NEW JERSEY.

No. 2.

Court of Appeals of Maryland

December 7, 1927

Appeal from Circuit Court of Baltimore City; H. Arthur Stump, Judge.

"To be officially reported."

Suit by August J. Bauernschmidt against the Standard Oil Company of New Jersey. Bill dismissed, and plaintiff appeals. Affirmed.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT DIGGES, and SLOAN, JJ.

Edwin H. Brownley, of Baltimore, for appellant.

Rowland K. Adams, of Baltimore, for appellee.

PATTISON J.

The appellee, the Standard Oil Company, is the owner of a vacant lot of land in the city of Baltimore, situated at the northeast corner of Edmondson avenue and Bentalou street fronting 203 feet on Edmondson avenue, with a depth of 90 feet on Bentalou street, and bounded on the east by a street to be opened and known as Spedden street, next to the bridge crossing the tracks of the Pennsylvania Railroad Company.

On July 15, 1925, the appellee, under Ordinance No. 334, passed by the mayor and city council of Baltimore, and approved January 9, 1925, known as Zoning Ordinance No. 2, filed its application in the office of inspector of buildings of Baltimore city for permission to use, for an automobile filling and service station, 103 feet of its lot, next to said bridge.

The appellant and others objected to and protested against the issuance of the permit, but, after hearing, Charles H Osborn, the inspector of buildings, on the following 25th day of July, issued permit No. 813 to the appellee. The appellant and others appealed from the action of the inspector of buildings to the board of zoning appeals. The decision of that board being in favor of the appellee, an appeal was taken by the appellant and those associated with him to the Baltimore city court. While the appeal was pending in that court, this court, on December 10, 1925, handed down its opinion in Tighe v. Osborne, 149 Md. 361, 131 A. 801, 43 A. L. R. 819, holding that Ordinance No. 334 is invalid. Thereafter on December 7, 1926, the appeal to the Baltimore city court was dismissed.

In addition to permit No. 813, granted under Ordinance No. 334, two other permits were granted to the appellee. By the first of these, No. 5103, dated September 6, 1925, the inspector of buildings gave to the appellee permission "to erect brick gasoline service station 18X40" on its lot on the northeast corner of Edmondson avenue and Bentalou street; and, by the other, No. 462, dated January 20, 1926, permission was granted to the appellee to install on said lot, four 1,000-gallon gasoline tanks and three pumps.

After the dismissal of the appeal in the Baltimore city court, the appellee started the construction of the building and the installation work authorized by the above-mentioned permits, when, on the 7th day of February, 1927, the appellant, August J. Bauernschmidt, filed his bill in this case, alleging that he was the owner of, and resided at, No. 2317 Arunah avenue, the next street or avenue north of Edmondson avenue; that the defendant, under authority of said permits, had installed certain gasoline tanks, had built driveways leading into and out of said lot of the defendant, and was about to erect a building on said location to be used as a gasoline filling and service station; that the defendant had made no application for a permit to use said land as a gasoline filling and service station under Ordinance 825 (the present Zoning Ordinance), approved October 1, 1926, nor had any permit been issued to the defendant by the building engineer under and by virtue of the provisions of that ordinance. The bill then alleges that the further prosecution of the work by the defendant to convert said property and location into a gasoline filling and service station without first securing a permit from the building engineer, as provided for by Ordinance 825, would be "in violation of the present existing law and authority, and an unlawful invasion of the rights of the public and the private rights of your orator and others, who, by reason of his and their ownership of property, the use of the sidewalks and highways, and their residing in the immediate neighborhood of the location, have a special interest in the premises," and "the maintenance of a gasoline filling and service station in the location mentioned by the defendant would depreciate the value of the property of this complainant and others in the neighborhood of said location, and would otherwise cause irreparable loss, damage, and injury to the property and rights of your orator and others, for which he and they would have no adequate remedy at law, and that the proposed use of the location by the defendant as a gasoline filling and service station, and the handling and storage of gasoline and kerosene and other materials of a combustible, explosive and inflammable nature, which of necessity * * * would create hazards from fire, affect traffic conditions, and otherwise menace the public security, health, and morals."

The prayer of the bill asked that the Standard Oil Company be enjoined from the further prosecution of the work of building and erecting a gasoline filling and service station on said lot of the defendant "until such time that the defendant shall have obtained a lawful and valid permit for said purposes under the provisions of Ordinance 825, of the mayor and city council of Baltimore, approved October 1, 1926," and until further ordered by the court. Upon the filing of the bill, the court ordered that a writ of injunction be issued as prayed in the bill, unless cause to the contrary was shown on or before the date named therein. The defendant answered the bill, admitting that he had installed gasoline tanks and had built driveways on the easternmost half of its property at the intersection of Edmondson avenue and Spedden street and that the work so done was pursuant to, and by virtue of, the permits issued by the city of Baltimore. It further admitted that it had made no application to the building engineer for a permit under Ordinance No. 825, but denied that the maintenance of a gasoline filling and service station at said location would depreciate the value of the property in the neighborhood of the station, or "that any act done by it, or proposed to be done by it, in connection with the development of its property aforesaid, would cause loss, damage, or injury to the property and rights of the complainant or any other persons whom * * * he may represent," and denied that "the handling and storage of gasoline and its other products which would be handled, sold, or stored on the premises would create hazards from fire, affect traffic conditions, or otherwise menace the public security, health, or morals."

A hearing was had upon the bill, answer, and agreed...