Great Northern Refining Co. v. Lutes

• Decision Date: 11 February 1921
• Citation: 227 S.W. 795,190 Ky. 451
• Parties: GREAT NORTHERN REFINING CO. v. LUTES ET AL.
• Court: Kentucky Court of Appeals

227 S.W. 795

190 Ky. 451

GREAT NORTHERN REFINING CO. v. LUTES ET AL.

Court of Appeals of Kentucky.

February 11, 1921

Appeal from Circuit Court, Lee County.

Action by Harriet A. Lutes and another against the Great Northern Refining Company. From a judgment for plaintiffs, defendant appeals. Reversed for further proceedings.

Hurst Rose, & Stamper, of Beattyville, for appellant.

Theo. B. Blakey, of Beattyville, and Hobson & Hobson, of Frankfort for appellees.

QUIN J.

This is an appeal from a judgment for $800, awarded appellees as damages growing out of the erection and maintenance of an oil tank and a loading rack within approximately 100 feet of their residence.

The petition alleges appellant had erected said tank and loading rack, and was constantly piping crude petroleum oil into the tank, which had a capacity of 1,500 barrels, and from the tank to the cars for shipment by rail, and that the fumes from said oil and the gases escaping therefrom were so disagreeable, offensive, and injurious as to constitute a nuisance, and so as to make their residence almost uninhabitable.

It was also alleged that because of the proximity of the tank to their residence, and the fact that the oil was impregnated with gas and was highly inflammable they were constantly in danger of having their property destroyed by fire.

We deem it sufficient to refer to but few of the several points urged for reversal.

The petition is not demurrable. The storage of oil upon one's premises is not per se a nuisance. A lawful business cannot be a nuisance per se, but the character of the business, the manner in which it is conducted, its proximity to other buildings, and the surrounding circumstances may be such as to create a nuisance. It is not every annoyance that will give a right of action to the complaining party. A nuisance is that which offends the olfactories of an ordinary man, and not those of an individual with sensitive and delicate nostrils. It is usually for the jury to say what amount of annoyance will constitute a nuisance such as will give a cause of action to the person annoyed.

Exery one who brings or stores oil on his land must confine it securely in pipes, tanks, or reservoirs, or at least not permit it to escape onto the land of another, whether by flowing over the surface or percolating through the soil, and if he do not, even though guilty of no negligence, he will be liable for whatever damage is suffered by the oil escaping. This is true, although the refining of oil is a perfectly legitimate business. Nor is the owner of property injured by the operation of oil wells or works, confined to instances where the oil actually enters upon his premises, as he may recover because of noxious odors occasioned by their operation rendering his premises unhealthy or objectionable to live upon. See Thornton on Oil and Gas, §§ 661, 664, 666.

Appellees' property is located in the city of Beattyville, and it is alleged that, due to a break in a pipe or leakage from the tank, oil flowed upon their premises. This could hardly be true as we understand the record, as their property is much higher than the public way which separates it from the slate pile upon which the tank is erected, but it probably could have flowed against their property.

As said in Joyce on Nuisances, § 157, where the air is corrupted by noisome smells so as to...