Hanes v. Carolina Cadillac Co.

• Decision Date: 06 November 1918
• Docket Number: 363.
• Citation: 97 S.E. 162,176 N.C. 350
• Parties: HANES v. CAROLINA CADILLAC CO.
• Court: North Carolina Supreme Court

97 S.E. 162

176 N.C. 350

HANES v. CAROLINA CADILLAC CO.

No. 363.

Supreme Court of North Carolina

November 6, 1918

Appeal from Superior Court, Forsyth County; Lane, Judge.

Suit for injunction by P. H. Hanes against the Carolina Cadillac Company. From the decree rendered, plaintiff appeals. Affirmed.

Walker J., dissenting.

As a general rule, where the thing complained of is not a nuisance, but may or may not become so according to circumstances, and the injury apprehended is eventual or contingent, equity will not interfere.

Louis M. Swink and Hastings, Stephenson & Whicker, all of Winston-Salem, for appellant.

A. E Holton and D. H. Blair, both of Winston-Salem, for appellee.

BROWN J.

The plaintiff seeks to enjoin defendant until the final hearing of this cause from establishing a public supply station for automobiles on a lot near plaintiff's residence property. The judge dissolved the temporary restraining order and refused an injunction to the hearing, but required defendant not to store over 1,500 gallons of gasoline in its 8,000-gallon tank at one time, whereupon defendant complied with the order and installed two 1,000-gallon tanks, instead of the 8,000-gallon tank. Defendant purposes to obey the order by storing 1,500 gallons in the two 1,000-gallon tanks.

Automobiles are of such general use that they have become a part of the daily life of our people, in business as well as for pleasure. Public garages and supply stations are essential and cannot well be dispensed with. The establishment of such public conveniences, even in residential sections of cities and towns, has been held not to be a nuisance per se. Sherman v. Levingston (N. Y. Sup.) 128 N.Y.S. 581. It has been further held that the storage of gasoline in suitable tanks, set well down in the earth, does not constitute a nuisance per se. Harper v. Standard Oil Co., 78 Mo.App. 338; Cleveland v. Gaslight Co., 20 N. J. Eq. 201.

It is a general rule that, where the thing complained of is not a nuisance per se, but may or may not become so according to circumstances, and the injury apprehended is eventual or contingent, equity will not interfere. Berger v Smith, 160 N.C. 208, 75 S.E. 1098; Chambers v Cramer, 49 W.Va. 395, 38 S.E. 691, 54 L. R. A. 545. The defendant's supply station has not been declared to be a nuisance by the verdict of a jury upon final hearing, and in the meantime we are of opinion that the rights of plaintif...