Eastern Oil Ref. Co. Inc. v. Court Of Burgesses Of Wallingford
| Decision Date | 02 March 1944 |
| Citation | 130 Conn. 606,36 A.2d 586 |
| Court | Connecticut Supreme Court |
| Parties | EASTERN OIL REFINING CO., Inc., v. COURT OF BURGESSES OF WALLINGFORD et al. |
OPINION TEXT STARTS HERE
Appeal from Court of Common Pleas, New Haven County; Bordon, Judge.
Action by Eastern Oil Refining Company, Inc., against the Court of Burgesses of Wallingford and another for an injunction vacating an order of the named defendant and for other relief. The case was tried to the court. From a judgment for plaintiff, defendant named appeals.
No error.
Joseph N. Manfreda, of Wallingford, for appellants.
Spencer S. Hoyt, of New Haven, for appellee.
Before MALTBIE, C.J., and BROWN, JENNINGS, and DICKENSON, JJ., and EDWARD J. DALY, Superior Judge.
By this action the plaintiff sought to have vacated the named defendant's order that it cease operating its oil refining plant in Wallingford, and also injunctive relief. The court rendered judgment for the plaintiff and the defendant has appealed. The following is a summary of the undisputed facts material to our decision: The plaintiff owned a building in Wallingford which it remodeled and equipped for use as an oil refinery at an expense of $15,000. In July, 1941, it began operating on a commercial basis, re-refining used crank case and cutting oil. The plant is located on the main line of the railroad at the edge of a residential neighborhood where are also foundries, steel mills, gasoline stations and lumberyards. As originally operated it gave off sulphur vapors and gases having a mercaptan odor. These gases on windy days were carried into the homes of nearby residents. On their complaint that the odors were objectionable, the plaintiff on March 6, 1942, was served with notice to attend a hearing before the defendant court of burgesses on March 10, to determine whether its business was a nuisance and whether it caused unreasonable annoyance to persons living in the vicinity.
The hearing was convened pursuant to a by-law enacted by the defendant the preceding day empowering it to condemn as a nuisance the use of ‘any building or premises for the purpose of carrying on any trade, business, or manufacture in said borough which in the opinion of the Court of Burgesses is prejudicial to public health, or an unreasonable annoyance to persons, firms or corporations owning property or living in the vicinity of the place where said trade, business, or manufacture is conducted.’ This was adopted under authority of § 48 of the borough charter (9 Spec. Laws 1881, p. 124), which provides that ‘the court of burgesses shall have full power, under the restrictions otherwise provided in this act, to make, alter, repeal, and enforce such bylaws as they shall see fit, in relation to the following subjects within the limits of said borough, to wit: the prevention of nuisances of all kinds arising from sinks, cesspools, privies * * * or any other cause whatever, and their summary abatement by said court of burgesses, or any person * * * by them appointed thereto.’ Neither the charter nor any ordinance or bylaw passed under it applicable to the plaintiff prohibited the maintenance or operation of an oil refining plant within the borough, or declared such a plant to be a nuisance. At the hearing, neighboring residents testified that the plant emitted objectionable and offensive odors interfering with the use of their homes and affecting their health, while the plaintiff's president testified that equipment had been ordered which when installed would eliminate the odors complained of. On March 11, 1942, the defendant in compliance with the provisions of the ordinance notified the plaintiff that the operation of its plant was declared a nuisance, and further ordered it ‘to immediately stop and cease your present method of the operation of the plant which has caused the emissions of objectionable and offensive dors and smells, until such time as you can demonstrate and prove to the satisfaction of the Court of Burgesses that either through equipment installed, or otherwise, you can so operate said business, without the emission of such offensive, objectionable and noxious odors and smells and without causing an unreasonable annoyance to people owning property or living in the vicinity of the plant and without being a nuisance.’
The plaintiff immediately thereafter brought this action. It secured a temporary injunction against the enforcement of the order which was subsequently dissolved and later reinstated in a modified form by agreement of the parties. The plaintiff installed machinery and equipment designed to eliminate all noxious odors. At the final hearing of the case the trial court held that the plaintiff had the right to appeal from the order and that on that appeal it was entitled to a judicial determination of whether the operation of its plant was prejudicial to public health or an unreasonable annoyance to those living or owning property in the neighborhood; the court concluded upon the basis of the evidence and its own inspection of the premises that the operation of the plant did not constitute a nuisance and that the other of the court of burgesses that the plaintiff cease operating its plant was unreasonable and arbitrary; and the court held that the order should be set aside and the defendant be restrained from interfering in any way with the operation of the plaintiff's plant.
The question determinative of the merits of this appeal is whether the defendant's order of March 11, 1942, was warranted under the powers conferred by the charter. Whether, in view of the broad provision of the charter, the court of burgesses could pass an ordinance of general effect forbidding the establishment or maintenance of oil refineries such as that of the plaintiff in the town or in the portion of it where the plaintiff's plant is located, we are not called upon to decide. See Levine v. Board of Adjustment of New Britain, 125 Conn. 478, 482, 7 A.2d 222. Here no such enactment by the defendant is involved. By its order complained of condumning the operation of the plaintiff's plant as a nuisance, the defendant professed to be exercising a power specified in its...
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