Czapski v. Sun Oil Co.

• Decision Date: 24 May 1939
• Citation: 21 N.E.2d 230,303 Mass. 186
• Parties: CZAPSKI v. SUN OIL CO. et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

303 Mass. 186

21 N.E.2d 230

CZAPSKI

v.SUN OIL CO. et al.

Supreme Judicial Court of Massachusetts, Suffolk.

May 24, 1939.

Suit by Wladyslaw Czapski against Sun Oil Company and another to restrain the operation by the defendants of a gasoline filling station adjoining the plaintiff's tenement houses. From a final decree dismissing the bill, the plaintiff appeals.

Affirmed.Appeal from Superior Court, Suffolk County; Hammond, Judge.

J. K. Jerome and A. Sigel, both of Boston, for appellant.

W. F. Farr and D. G. Allen, both of Boston, for appellees.

LUMMUS, Justice.

The plaintiff appeals from a final decree dismissing his bill to restrain the operation by the defendants of a gasoline filling station adjoining the plaintiff's tenement houses, the kitchens of which overlook it. The judge found no unnecessary noise or odor. But the evidence is reported, and we are bound to make findings for ourselves, giving to the findings of the judge the weight required by a rule too familiar to need restatement. Trade Mutual Liability Ins. Co. v. Peters, 291 Mass. 79, 83, 84, 195 N.E. 900;Spiegel v. Beacon Participations, Inc., Mass., 8 N.E.2d 895;Smith v. Stratton, Mass., 18 N.E.2d 328.

The evidence showed some noise, and an objectionable odor, but nothing beyond the natural incidents of the reasonable and careful conduct of a gasoline filling station. Since it is conceded that the defendants were licensed by the proper public authorities to maintain such a station, the plaintiff cannot restrain as a nuisance the doing in a reasonable and careful manner of the very act licensed. Sawyer v. Davis, 136 Mass. 239, 49 Am.Rep. 27;White v. Kenney, 157 Mass. 12, 31 N.E. 654;Murtha v. Lovewell, 166 Mass. 391, 44 N.E. 347,55 Am.St.Rep. 410;Commonwealth v. Packard, 185 Mass. 64, 69 N.E. 1067;Levin v. Goodwin, 191 Mass. 341, 77 N.E. 718,114 Am.St.Rep. 616; Strachan v. Beacon Oil Co., 251 Mass. 479, 487, 488, 146 N.E. 787;Marshall v. Holbrook, 276 Mass. 341, 346, 177 N.E. 504. See also St. James Building Corp. v. Commissioner of Public Safety, 260 Mass. 548, 157 N.E. 629;Hanauer v. State Fire Marshall, 271 Mass. 506, 171 N.E. 428. Compare Hakkila v. Old Colony Broken Stone & Concrete Co., 264 Mass. 447, 162 N.E. 895;Tortorella v. H. Traiser & Co., Inc., 284 Mass. 497, 501, 188 N.E. 254, 90 A.L.R. 1203.

Decree affirmed with costs.