Hibberd v. Edwards

• Decision Date: 18 March 1912
• Docket Number: 257
• Parties: Hibberd v. Edwards, Appellant
• Court: Pennsylvania Supreme Court

84 A. 437

235 Pa. 454

Hibberd v. Edwards, Appellant

No. 257

Supreme Court of Pennsylvania

March 18, 1912

Argued February 6, 1912

Appeal, No. 257, Jan. T., 1911, by defendant from decree of C.P. Chester Co., No. 546, in equity in case of Joshua E Hibberd et al. v. Ralph Edwards. Affirmed.

Bill in equity for an injunction.

HEMPHILL P.J., filed the following opinion:

FINDINGS OF FACT.

The defendant, who is now the lessee of a small garage located on the Lancaster pike in the village of Paoli about one hundred feet west of where the Valley road crosses said pike, has purchased an "L" shaped lot with a frontage of fifty feet on the Lancaster pike, by one hundred and eighty feet deep, and of ten feet frontage on the Valley road; that on the pike being about one hundred and seventeen feet west of said road; and proposes and has commenced the erection of a large (46 ft. X 70 ft.) garage, with over six times the capacity of the one he now occupies.

In the proposed, as in the present, garage the defendant intends to conduct a business for the hire, storage and repair of automobiles, and furnishing of such supplies as they may need, and as the automobile travel along the pike is large and especially so on Saturday afternoons and Sundays, will bring many to his garage for repairs, and for gasoline, oil and other supplies. The stopping and starting of these machines is attended with more or less noise, depending upon the care and skill of the chauffeur, and [some of the repairs are necessarily attended with considerable noise, in the testing of the engines and in obtaining what is called the proper mixture, the latter causing loud explosions.

The conduct of the business is also attended with more or less smoke and unpleasant odors.]

[All of the witnesses, excepting two or perhaps three of the defendant's, testified that there were such noises, smoke and odor emitted from defendant's present garage, differing only as to the degree of offensiveness and the distance of the surroundings affected or that they reached.

The noises and odors while not continuous or permanent are frequent, excepting at night and on Sundays, when defendant limits his business to what he calls emergency work and the furnishing of supplies.]

[The noises are variously described as "a series of rapid explosions" -- "noise of running machinery and pounding and banging" -- "the gas engine exploding and snapping and cracking" -- "frequent explosions * * * like a heavy cannon cracker," etc., and the odor as "smoke of the burning gasoline with oil smells more or less quite offensively --"

"Sometimes there is a heavy smoke" -- "The odor of gasoline" -- "a great deal of odor" -- "a great deal of smoke," etc.]

The defendant, however, claims that these objectionable features of his business will be put an end to or minimized in the new and enlarged garage, because he will then be able to do all his work in an enclosed building, instead as now much of it outside, excepting in the summer time, when it will be necessary to have the large doors (front and back) and the widows open.

But it is in summer, when houses are thrown open, and porches and grounds more used, that residents are and will be most annoyed and the enjoyment of their homes interfered with, than at any other season of the year.

Messrs. Hibberd, Sinnickson, Shunk, Matthews, Glisson, Harry Davis and Hogue, Harry Daivs and Hogue, witness called by the plaintiffs, all reside in close proximity to the present garage and about the same distance from the lot upon which defendant proposes to erect the new one; and testify from actual personal knowledge and experience, and agree that the noise and odors emitted from the present garage is offensive and disagreeable and interferes with the comfort and enjoyment of their homes.

On the other hand, Messrs. McAllister and Miller, called by defendant -- the former living in the garage building and the latter in the fire engine house, near by, -- both testified that they did not consider the noise and odors emanating from the garage offensive.

The remaining witnesses for both plaintiff and defendant, who testified on this subject, spoke not from actual knowledge and experience, but from observations made when passing or casually visiting the garage, and from their acquaintance with the construction, care and operation of automobiles -- giving what is sometimes called -- judgment or opinion evidence.

[The weight of the testimony, however, so strongly substantiates the contention of the plaintiffs, that we have no doubt that the present garage is and the proposed would be offensive, and mar the comfort and enjoyment of those homes located in the immediate vicinity -- and we so find.]

Now the properties owned or occupied by the plaintiffs and defendant were originally a part of a large tract of 348 acres of land owned by the Paoli Heights Land Company and were conveyed to the present owners under and subject, inter alia, to like conditions, and restrictions as set forth in the deed to the defendant, to wit:

"And the said Ralph Edwards, his heirs and assigns, owners and occupiers of the said tract of ground, shall not at any time hereafter, erect or build or cause, suffer or permit to be erected or built, upon the hereby granted tract of land, or any part thereof any tavern, drinking saloon, steam...