Commonwealth v. Miller

• Court: United States State Supreme Court of Pennsylvania
• Writing for the Court: WILLIAMS, J.
• Citation: 21 A. 138,139 Pa.St. 77
• Decision Date: 08 January 1891
• Parties: COMMONWEALTH v. MILLER et al.

21 A. 138
139 Pa.St. 77

COMMONWEALTH
v.
MILLER et al.

Supreme Court of Pennsylvania.

Jan. 8, 1891.

Appeal from court of quarter sessions, Allegheny county; Christopher Magee, Judge.

A. D. Miller, Sr., A. D. Miller, Jr., and R. B. Miller were indicted on four counts for maintaining a public nuisance. At the trial it appeared that they own and operate an oil refinery, situated on the Ohio river in the city of Allegheny, and that the establishment was originally built about 30 years before, and for 20 years had been the property of the defendants. The city had grown up around it, and a number of manufactures and establishments of various kinds extend along the river front, both above and below the refinery. There are also private residences in its vicinity. The territory is a populous one. The establishment is a large concern, employing 75 men, and representing an investment of $300,000. The refinery is filled with the appliances required in the business, and contains explosive and inflammable material. In July or August, 1889, two tanks upon the premises were destroyed by a fire, which was accompanied by a serious explosion, and required the services of the fire department 24 hours before its extinguishment. After this occurrence a bill in equity was filed to enjoin the further operation of the works, and is still pending. Witnesses for the commonwealth testified that a continuous stench permeated the atmosphere, producing headache and nausea. It was variously described as suggesting "rotten eggs," "burning gum-boots," "putrifying substances," and as "a pungent, acid, acrid smell." It was claimed that the odor was emitted by the refinery. The defense denied that the stench proceeded from their establishment, and called witnesses who testified that there was no process in the refinery which could cause such a stench; that it had no trace of petroleum; that, covering the period during which it was noticed, experiments were being made in the vicinity in another establishment in purifying and refining lima oil, which was not used by defendants, and which produced a smell such as the commonwealth's witnesses described; that the sulphur arising from the blast furnaces, the burning oil and sand from the foundries, the deposits of night-soilers on the banks of the river in the immediate vicinity, were each and all capable of emitting the smell complained of. Experts were also called who testified that explosions can occur only where the tanks are almost empty, and never when they are full; that there is no such explosive force as gunpowder has, but the rapid combustion, which is called "explosion," has but the slightest force, restricted in its operation to the immediate vicinity. Defendants requested permission for the jury to visit the refinery when in operation and examine

21 A. 139

the premises, which was objected to by counsel for the commonwealth. The court refused to make the order. Counsel for defendants attempted to comment to the jury upon the objection of the commonwealth to this proposition, but counsel for the prosecution "objected," and the objection was sustained. Verdict, guilty. Motions for a new trial, and in arrest of judgment, were overruled, and defendants were each sentenced to pay a fine of six cents to the commonwealth, and the costs of prosecution, and to abate the nuisance. Defendants obtained a special allocation, and appealed.

S. Schoyer, Geo. Shiras, Jr., and S. B. Schoyer, for appellants.

W. B. Rodgers, Geo. Elphinstone, and John S. Ferguson, for appellee.

WILLIAMS, J. The defendants own and operate a refinery where crude petroleum and its products are prepared for market. There are four acres within the inclosure fronting on the Ohio river. The Pittsburgh & Western Railroad passes in front of it, along the river's edge. The Cleveland & Pittsburgh Railroad runs upon the street directly in rear. The city of Allegheny, like its sister city, Pittsburgh, owes its growth and prosperity to the extent of its manufacturing interests, and the river front is almost wholly given over to these great industries. The indictment charges that the defendants' refinery is a public and common nuisance, because of the omission...