Hazlett v. Marland Refining Co.
| Citation | 30 F.2d 808 |
| Decision Date | 05 January 1929 |
| Docket Number | No. 8088.,8088. |
| Parties | HAZLETT et al. v. MARLAND REFINING CO. OF PONCA CITY. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
J. B. McKay, of Eldorado, Kan. (Charles G. Yankey, of Wichita, Kan., and C. L. Harris and L. J. Bond, both of Eldorado, Kan., on the brief), for appellants.
William C. Michaels, of Kansas City, Mo. (W. K. Moore, of Ponca City, Okl., C. L. Aikman, of Eldorado, Kan., and Meservey, Michaels, Blackmar, Newkirk & Eager, of Kansas City, Mo., on the brief), for appellee.
Before STONE and VAN VALKENBURGH, Circuit Judges, and PHILLIPS, District Judge.
R. H. Hazlett, Isabella Hazlett, his wife, Anna Anderson, the First Presbyterian Church, a corporation, and the First Baptist Church, a corporation, brought this suit against the Marland Refining Company and R. H. Seymour, to enjoin the construction of a drive-in gasoline filling station at the northeast corner of block 17, Eldorado, Kan. The trial court sustained a motion to dismiss the bill and entered its decree accordingly, and this is an appeal therefrom.
The following is a copy of a plat, marked "Exhibit A," attached to the bill of complaint and incorporated therein by reference:
It shows the various tracts of land and the various uses made thereof in the vicinity of the filling station site.
The filling station site is located in block 17 at the intersection of Washington street and Central avenue. The residence of the Hazletts is in block 17, immediately south of the filling station site. The residence of Anna Anderson is on the east side of Washington street, immediately opposite the filling station site. The Presbyterian Church is on the north side of Ceneral avenue, opposite the filling station site. The Baptist Church is on a tract of ground fronting on Washington street and Central avenue south and east of the Anderson residence.
From the foregoing it will be seen that the lots adjacent to the filling station site are not used exclusively for residential purposes, but that there is located thereon a public school, a grocery store, a studio, a public library, a public hall, and five churches.
The bill alleges that the properties of the plaintiffs are located in a strictly residential neighborhood; but this, as we have already shown, is refuted by the plat which is incorporated in and made a part of the bill.
The bill further alleges that if such filling station is erected and placed in operation at the above site, it will be dangerous for children to cross the entrance to the station, there will be traffic congestion at the intersection of Central avenue and Washington street, lights will gleam and flash in the windows of plaintiffs, disturbing noises will occur, the fire hazard will be increased, disagreeable odors will invade plaintiffs' premises, fumes will kill plaintiffs' trees and shrubbery, and the value of plaintiffs' property will be depreciated.
Equity will not grant an injunction to prevent an anticipated nuisance, unless it clearly appears that such nuisance will result from the contemplated act or thing sought to be enjoined. Wergin v. Voss, 179 Wis. 603, 192 N. W. 51, 53 (26 A. L. R. 933); Lansing v. Perry, 216 Mich. 23, 184 N. W. 473, 476; Missouri v. Illinois, 180 U. S. 208, 248, 21 S. Ct. 331 (45 L. Ed. 497); notes 7 A. L. R. 757; 26 A. L. R. 939. The complaint in a suit to restrain an alleged threatened nuisance, not a nuisance per se, must state such facts as will enable the court to determine whether the apprehension of irreparable injury is well founded. Davis v. Baltimore & O. R. Co., 102 Md. 371, 62 A. 572, 573, 574; Clinton Cemetery Association v. McAttee, 27 Okl. 160, 111 P. 392, 393 31 L. R. A. (N. S.) 945; notes, 7 A. L. R. 765; 26 A. L. R. 941.
A drive-in gasoline and oil filling station is not a nuisance per se. Julian v. Golden Rule Oil Co., 112 Kan. 671, 212 P. 884; Lansing v. Perry, supra; City of Electra v. Cross (Tex. Civ. App.) 225 S. W. 795, 797; Wasilewski v. Biedrzycki, 180 Wis. 633, 192 N. W. 989, 991; note 52 L. R. A. (N. S.) 930.
The locality in which a business establishment or an industrial plant is situated in some degree determines its character. What might be regarded as a nuisance in a purely residential district might be looked upon as a necessary and useful convenience in a district given over to commercial pursuits and places for public gatherings.
In the case of Thompson v. Evangelical Hospital Ass'n, 111 Neb. 191, 196 N. W. 117, 32 A. L. R. 721, the Supreme Court of Nebraska said: "A person who lives in a city must of necessity submit himself to the consequences and obligations of occupations which may...
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...in value if the airport is permitted to operate, that lone would not entitle the plaintiffs to an injunction. Hazlett v. Markland Refining Co. [8 Cir.], 30 F.2d 808; 46 C.J. 682, Note 25. If the airport is not a nuisance, its operation may not be enjoined because to some extent the value of......
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...of an anticipated nuisance, we look at the surrounding property, and consider its actual use."); see also Hazlett v. Marland Refining Co. of Ponca City, 30 F.2d 808, 809 (8th Cir.1929) ("Equity will not grant an injunction to prevent an anticipated nuisance, unless it clearly appears that s......
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...in value if the airport is permitted to operate, that alone would not entitle the plaintiffs to an injunction. Hazlett v. Marland Refining Co., 8 Cir, 30 F.2d 808; 46 C.J, 682, Note 25. If the airport is not a nuisance, its operation may not be enjoined because to some extent the value of t......