Chamberlin v. Hatch
| Decision Date | 01 October 1940 |
| Docket Number | 1113 |
| Citation | 15 A.2d 586,111 Vt. 317 |
| Parties | C. O. CHAMBERLIN v. HAROLD A. HATCH AND SINCLAIR REFINING COMPANY |
| Court | Vermont Supreme Court |
May Term, 1940.
1 Demurrer.---2. Nuisance per se.---3. Conclusions in Allegations.---4. Facts Necessary in Allegations.---5. Filling Station as Nuisance.---6. Individual Injury not Public Injury.---7. Allegation of Obstruction.---8. Allegations of Insecurity.---9. Smoke from Filling Station.---10. Electric Interference from Filling Station.---11. Filling Station as Nuisance per se.---12. Declaratory Judgment.---13. Waiver of Claimed Error.---14. Declaratory Relief as Bar to Legal Relief.
1. Demurrers of a plaintiff to defendants' answers to bill in chancery reach back through the record and attach to the first pleading bad in substance.
2. A gasoline filling station though erected in a residential district does not seem to be always a nuisance per se.
3. Allegations in a bill of complaint that a proposed gasoline filling station will be a nuisance constitute a mere conclusion of the pleader.
4. Allegations in a bill of complaint must set forth enough of the facts relied upon so that the court can see that the results or consequences which the bill claims will occur are not based on mere fear or anticipation but are reasonably to be expected.
5. A bill of complaint alleging that a filling station which the defendants have contracted to build will be a nuisance because it will violate town ordinances defining a public nuisance and that its operation will result in noise, odors dirt, dust and smoke, annoyance from automobile headlights interference with radio reception, obstruction of adjacent sidewalks and highways, and enhancement of fire risk by operation of filling station and storage of over 100 gallons of gasoline is defective as containing merely the conclusions of the pleader based on mere fear or anticipation and not facts showing that the results or consequences from which relief is sought are reasonably to be expected.
6. Allegations as to disturbance and discomfort of the plaintiff in the enjoyment of his home in an exclusive residential district do not constitute an allegation that such acts "shall annoy, injure, or endanger the safety, health, comfort, or repose of any considerable number of persons."
7. An allegation that a proposed filling station across the street from petitioner's premises will interfere, obstruct or tend to obstruct and render dangerous the sidewalk and highway adjacent to his premises is not sufficient to show that such result will reasonably follow and is merely a conclusion of the pleader.
8. Allegation as to damage and depreciation to petitioner's property in an exclusive residential district to be caused by a gasoline filling station proposed to be erected across a street are not allegations that it will in any way render any number of persons insecure in life or in use of property.
9. It is a matter of common experience that the usual operation of a gasoline filling station does not necessarily produce dense smoke.
10. An allegation that the use of electric pumps, bells and air compressors in connection with a proposed gasoline filling station will cause excessive noise and will interfere with radio reception constitutes a mere conclusion of the pleader.
11. Allegations that a proposed gasoline filling station will damage petitioner's property, disturb his home, prevent the peaceful and rightful use of his property, obstruct the highway and sidewalk adjacent to his premises and enhance the danger of fire to his property are not sufficient to adjudge that such proposed station would be a nuisance per se under ordinances declaring as a public nuisance use of property which "shall annoy, injure, or endanger the safety, health, comfort, or repose of any considerable number of persons", "shall unlawfully interfere with, obstruct, or tend to obstruct, or render dangerous for passage any public park, common, street, or highway," "shall in any way render any number of persons insecure in life or in use of property," and that "no person shall allow dense smoke, noxious fumes, gas, soot, or cinders in such quantities as to render the occupation of property uncomfortable to a person of ordinary sensibilities," and that "no person shall maintain or operate any electric device or apparatus which shall cause unreasonable interference with radio receivers, within the town limits."
12. An action for a declaratory judgment under the provisions of the Uniform Declaratory Judgment Act () does not seem to be the proper method of procedure for cases involving the subject matter of a nuisance.
13. Any claim of error is waived in respect to points not briefed.
14. The unsuccessful prosecution of proceedings under the Uniform Declaratory Judgment Act seeking an adjudication as to a nuisance per se does not bar an action for legal damage suffered by the operation and conduct of the alleged nuisance.
PETITION FOR DECLARATORY JUDGMENT under Chapter 68 of the Public Laws. The defendants each filed an answer to the amended petition and to each answer the petitioner demurred. Heard on demurrer by Windham County Court of Chancery, Adams, Chancellor, at September Term, 1938. Demurrers overruled. Petitioner appealed and also took the case to the Supreme Court on a bill of exceptions. The opinion states the case.
Decree affirmed.
Edward J. Shea and Osmer C. Fitts for petitioner.
Barber & Barber for defendant Hatch.
H. G. Barber for defendant Sinclair Refining Co.
Present: MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.
This is an action for a declaratory judgment under the provisions of the Uniform Declaratory Judgments Act, chapter 68 of the Public Laws. The petition sets forth in substance that the plaintiff is the owner of a home located in an exclusive residential district in Brattleboro. That the defendant Hatch is the owner of premises directly opposite those of the plaintiff and that this defendant has entered into a contract with the defendant Sinclair Refining Company to erect a gasoline filling and service station on his premises and has commenced building the same under a building permit obtained from the town of Brattleboro. It is also alleged that prior to the bringing of the within petition the plaintiff petitioned the selectmen of Brattleboro to cancel the permit on the ground that the filling station when erected would constitute a public nuisance which petition was denied.
It is alleged that certain ordinances are in effect in the town of Brattleboro which declare a public nuisance to be a thing, act, failure to act, occupation or use of property which: (1) "Shall annoy, injure, or endanger the safety, health, comfort, or repose of any considerable number of persons; * * * (3) Shall unlawfully interfere with, obstruct, or tend to obstruct, or render dangerous for passage any public park, common, street or highway; (4) Shall in any way render any number of persons insecure in life or in use of property". It is also alleged that these ordinances for the abatement of nuisances provide in sec. 9, that: "No person shall allow dense smoke, noxious fumes, gas, soot, or cinders in such quantities as to render the occupation of property uncomfortable to a person of ordinary sensibilities". Under these same ordinances section 15 is set forth as providing that: "No person shall maintain or operate any electrical device or apparatus which shall cause unreasonable interference with radio receivers, within the town limits", etc.
Certain other ordinances of the town...
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