O'Hara v. Nelson

• Decision Date: 20 February 1906
• Citation: 63 A. 836
• Parties: O'HARA et al. v. NELSON et al.
• Court: New Jersey Court of Chancery

63 A. 836

O'HARA et al.

v. NELSON et al.

Court of Chancery of New Jersey.

Feb. 20, 1906.

Action by John V. O'Hara and another against Richard J. Nelson and others. Preliminary injunction granted.

This is an application for a preliminary injunction to restrain the defendants from operating an automobile garage because of the noise, odor, and danger arising therefrom. The complainants are John V. O'Hara and Catherine O'Hara, and the appearing defendants are Richard J. Nelson and James Ray, and they will herein be called the defendants. The complainants are owners in common of a house and lot fronting on Cottage street in Jersey City, and the defendants are the tenants of a recently erected building fronting upon the Boulevard in the same city, which building is in use as an automobile garage. The land on which the garage is erected is owned by a Mrs. Childs. The building was commenced sometime in the middle of October, 1905, and was opened for business about the 20th of November, 1905. About the 5th of November this bill was filed. The application for a preliminary injunction was based upon the bill and affidavits, and was met by affidavits on behalf of the defendants, to which rebutting affidavits were filed by the complainants. The statements by the witnesses in their affidavits were so conflicting that counsel for each side requested the court to take the testimony of the witnesses in open court, which was done. Mrs. Childs, although she is a party defendant and filed an affidavit in her own behalf, did not appear by counsel at the hearing. The testimony of a large number of witnesses was taken.

The facts, I find as follows: Mr. and Mrs. O'Hara, the complainants, own a property 25 feet in front on Cottage street, extending between parallel lines 125 feet in depth. On this property there is erected a frame building three stories in height. The ground floor is occupied by the O'Haras, the family consisting of the father, mother, and a 17 year old daughter. The second and third floors are occupied by a tenant or tenants whose names are not given by any of the witnesses. The building extends back from Cottage street between 40 and 45 feet. The automobile garage of the defendants is erected on a lot about 40 or 50 feet from the comer of Cottage street, and the Boulevard, and faces on the Boulevard. It is about 40 feet front by about 75 feet deep. It is of frame upon a brick foundation. The rear wall of the garage, for about 10 feet runs parallel and adjacent to the house of the complainants, and about 4 to 5 feet therefrom. The immediate neighborhood, as disclosed by the proofs, is shown to be as follows: On the corner of Cottage street and the Boulevard there is a one-story frame building used as a candy store and ice cream parlor, occupied by a man named Patterson. A few feet intervene between this building and the automobile garage., Next to the garage, separated by a few feet from it, is a two-story and basement house occupied by Mrs. Albrecht, who keeps therein a boarding and lodging house. Next to her house is a similar house, containing one other story, which is occupied by Mrs. Childs, who owns the land upon which that is erected and also the land upon which the Albrecht boarding house, the automobile garage, and the Patterson store are erected. Next to Mrs. Childs, on the Boulevard, is a real estate office, and next to that and upon the corner of the Boulevard and West Newark avenue is a liquor saloon. Coming back, now, to the corner of Cottage street and the Boulevard, immediately in the rear of Patterson's ice cream saloon, but several feet therefrom, is the property line of the complainants, and on their property is erected the house heretofore described. Next to the complainants' property there are vacant lots until the corner of the next street is reached, and upon that corner there is a five-story brick flat building erected. Across Cottage street the land is fenced in and is owned by a railroad company, and trains are there operated. The garage, as before stated, is 40 feet in front and 75 feet deep. It has a capacity of between 20 and 25 automobiles of average size. The rear of the building is used as a shop for the repairing of automobiles and of bicycles, so that at present there are no automobiles stored nearer than 30 feet from the rear wall. There is a large door in the front of the building, and there are five windows in each side wall, one window in the rear wall, and three openings in the roof in the form of skylights. Upon the right, as you enter the garage, is a small office, and upon the left is a large cement floor, 12 by 15 feet, where there is a washstand for cleaning the cars. Outside of the building, as you enter, there is buried in the earth some three feet a reservoir or tank of sheet iron, capable of holding two barrels of liquid. This tank has two openings, in one of which there is a pipe leading into the barrel through which it is filled, and the other has a pipe leading out of the tank and connecting with a pump by which it is emptied. Attached to this last-named pipe there is what is known as a "Bowser Pump," which is especially designed for the pumping of gasoline, and is so constructed that it cannot, at any one time, bring up more than a gallon of gasoline. Of course, by setting the gauge at less than a gallon, a less amount can be brought up at each complete operation of the pump. The purpose of limiting the amount which may be brought up at any one time is to minimize the chance of more gasoline than is needed being taken from the receptacle. The method of filling the tanks of the automobiles from the buried reservoir is to pump up the gasoline and gather it in a receptacle which is in turn emptied into the tank of the automobile, which tank, when filled or when as much as is intended is put into it, is closed by screwing down a cap.

J. Meritt Lane, for complainants. G. J. Stillman and A. B. Archibald, for defendants.

GARRISON, V. C. (after stating the facts). There are three distinct elements charged by the complainants as constituting the nuisance complained of. They complained of noise, of odor, and of danger. The evidence with respect to noise is so slight, and the noises complained of were so casual and ordinary in their nature, that I shall entirely dismiss this charge from consideration.

With respect to the charge of the emanation of disagreeable odors, I find the situation to be this: Mr. and Mrs. O'Hara and their daughter each testify that at various times they smelled the odor of gasoline coming from the direction of the garage. Opposed to this testimony there is that of Patterson, whose store is immediately next to the garage; of Mrs. Albrecht, her domestic servant, and a boarder and lodger in her house, which house, as has been before stated, is immediately next upon the other side of the garage; of Mrs. Childs and her daughter, who reside immediately next to Mrs. Albrecht; and of a Mr. Smith, who lives across the Boulevard from the garage. The complainants seek to minimize the weight to be given to the testimony of Patterson, Mrs. Albrecht, her servant, and her lodger, and Mrs. Childs and her daughter, by charging that the latter are, of course, directly interested, Mrs. Childs being the owner of the land in question, and Mrs. Albrecht being Interested because she is a tenant of Mrs. Childs, as also is Mr. Patterson; that the domestic servant testified that she did not know the odor of gasoline; and that the boarder in Mrs. Albrecht's house lived in a room too high above the surface of the ground to readily detect the odor if it existed. It must be kept in mind, however, that Mrs. Albrecht, her servant, and her lodger, each testified that they were frequently in the yard of her house, which is immediately next the garage, upon which yard, or adjacent to it, there opened five windows of the garage, and that each testified that they had never detected the odor of gasoline in the air.

Conceding that the criticism of the complainants in this respect is substantial, It is equally applicable to the complainants' own evidence, which consists solely of the testimony of Mr. and Mrs. O'Hara, the complainants, and their daughter. If this odor was as prevalent as they would have us believe, it seems very strange that they have not produced any of the other occupants of their own house to testify to the existence of the odor, and that they have not produced any Impartial witness thereto. If these complainants seriously intended to rest their right to the writ of Injunction upon the proof of the presence in the atmosphere surrounding their house of odors emanating from the garage, they surely would have produced witnesses, unaffected by the interest or bias, whose testimony would have been practically Impregnable. If these odors are of the character they describe, they could have produced overwhelming evidence thereof by causing their premises to be visited by persons whose testimony would have carried conviction. I find, therefore, as a fact, that the complainants have not produced sufficient evidence of the existence of odors emanating from the garage to entitle them, upon this preliminary application, to the relief prayed for.

This leaves for consideration that which I consider to be the serious question in this case. Briefly stated, that is whether, in a thickly built up portion of a large city— particularly where there are numerous frame buildings—parties may store and use so dangerous a substance as gasoline in such large quantities that an explosion thereof would cause serious Injury to the adjacent property and be a serious menace to the lives of those in that vicinity. The expert testimony adduced is fortunately not conflicting, and may, in fact, be said to be accordant this testimony shows that what is commonly termed "gasoline" is the fourth distillate of crude petroleum. The fourth distillate consists of what is termed "naphtha," which, in...