Brown v. Easterday

• Decision Date: 13 July 1923
• Docket Number: 22481
• Citation: 194 N.W. 798,110 Neb. 729
• Parties: FRANK H. BROWN, APPELLEE, v. C. R. EASTERDAY ET AL., APPELLANTS
• Court: Nebraska Supreme Court

194 N.W. 798

110 Neb. 729

FRANK H. BROWN, APPELLEE, v. C. R. EASTERDAY ET AL., APPELLANTS

No. 22481

Supreme Court of Nebraska

July 13, 1923

APPEAL from the district court for Lancaster county: WILLARD E STEWART, JUDGE. Reversed and dismissed.

Judgment of the lower court reversed and case dismissed.

Burkett Wilson, Brown & Wilson, Claude S. Wilson and Albert S Johnston, for appellants.

T. S. Allen, C. Petrus Peterson and Charles R. Wilke, contra.

Heard before MORRISSEY, C. J., DEAN, DAY and ALDRICH, JJ., COLBY and REDICK, District Judges.

OPINION

REDICK, District Judge.

The action is to enjoin appellants from erecting a filling station for the sale of oils and gasoline to motorists in the manner commonly in use. The plaintiff is the owner of an adjoining lot which he occupies as a private residence; the defendants are the owner of the corner lot and his lessees who propose to operate the station. The grounds upon which the plaintiff bases his right to an injunction are: (1) That defendants are constructing said station in violation of the city ordinance regulating storage tanks for gasoline, a permit therefor having been denied by the city council as against the public safety; and (2) that the filling station is a nuisance; that it deprives plaintiff of the comfortable enjoyment of his property; that it will cause a congestion of automobiles in that vicinity; that the glare of lights will be thrown directly on plaintiff's house; that the apparatus makes disagreeable noises; the fire hazard and rates increased, and the property lessened in value by being rendered uninhabitable for residence.

The city of Lincoln filed a petition of intervention, alleging a city ordinance providing, among other things, "that no underground gasoline tank shall be installed without obtaining a permit from the city council for the installation thereof," and that, notwithstanding a permit was denied defendants, they were proceeding to install such tank, and joins in prayer for injunction.

The answers of defendants admit that the filling station is being erected; that no permit therefor was obtained, but the same was denied; set forth the nature of the improvements contemplated; deny all other allegations of the petition; and allege that plaintiff has an adequate remedy at law.

The lower court granted a temporary injunction, which was made permanent by final decree, and defendants appeal.

It is conceded that the buildings and other improvements, if constructed as proposed, will in every respect comply with the building regulations and ordinances of the city, the objection going only to the fact that defendants are proceeding without a permit to install the tanks. The building ordinance was received in evidence over the objection of irrelevancy by defendants, and considerable space in the briefs on both sides is devoted to a discussion as to its validity; but we do not find it necessary to decide this question, for the reason that the failure to take out the ordinary building permit is not within the allegations of the petitions, which refer only to the "ordinance regulating storage tanks for gasoline." Besides, no building had been started, only a pit for the tanks. Doubtless defendants will apply for and obtain a permit for the buildings before starting upon their erection. Furthermore, the city having refused a permit to install the tanks, defendants were not required to do the useless thing of applying for a permit for the building, the utility of which depended upon the other improvements.

The only questions for discussion then are (1) whether defendants were required to take out a permit to install the gasoline storage tanks; and (2) whether a filling station in the location proposed is a nuisance which an adjoining property owner may enjoin.

The material parts of the ordinance relied upon as requiring a permit to install the tanks are as follows:

"Section 1. It is hereby declared unlawful for any person or corporation to store or keep any coal oil, gasoline, naptha, benzine, or other like products of petroleum, in quantities of more than five gallons in the city of Lincoln in any other manner than provided for in this ordinance. (Provided this ordinance shall not apply to reservoirs on motor vehicles.)"

Section 2 provides with great particularity the material of which the tanks and pipes shall consist, and the manner of their connection and installation, but contains no word on the subject of a permit until the last paragraph, which is as follows:

"Provided it shall be unlawful for any person, firm or corporation to keep any quantity of such products exceeding one gallon in any building within the fire limits of said city in any other manner than as above described without first obtaining a written permit from the chief of the fire department so to do. And provided, further, that such oils may be kept and stored in tanks otherwise than provided in this ordinance where such tanks are constructed of iron or steel and coated on the outside with tar or other rust resisting material and are detached and clear from buildings, at least 75 feet distant from any other building, and by obtaining permission from the mayor and council, and storing of any such oils on the west side of Fourth street in said city." (Italics are ours.)

We are unable to find in this ordinance any requirement that a permit be taken out when the installation is to be made in the manner described in the first part of section 2, which is the case here. The only condition requiring a permit is when it is desired to keep the oil in some other manner. This is practically conceded by plaintiff's counsel, who "confess that the ordinance could have been drawn in a more clear and satisfactory manner," but contend that the defendants and all others in the city have placed a practical construction thereon by uniformly applying for permits, and heretofore accepting a denial thereof as...