Howe v. Standard Oil Co. of Indiana

• Decision Date: 06 May 1941
• Docket Number: No. 25657.,25657.
• Citation: Howe v. Standard Oil Co. of Indiana, 150 S.W.2d 496 (Mo. App. 1941)
• Parties: HOWE v. STANDARD OIL CO. OF INDIANA.
• Court: Missouri Court of Appeals

150 S.W.2d 496

HOWE v.STANDARD OIL CO. OF INDIANA.

No. 25657.

St. Louis Court of Appeals. Missouri.

May 6, 1941.

Appeal from Circuit Court, St. Francois County; Taylor Smith, Judge.

"Not to be reported in State Reports."

Action by Edward Howe against the Standard Oil Company of Indiana to restrain the defendant from maintaining a fence adjacent to plaintiff's lot.From a judgment for plaintiff, the defendant appeals.

Judgment reversed.

Smith & Roberts, of Farmington, for appellant.

Robert A. McIlrath and W. E. Coffer, both of Farmington, for respondent.

ANDERSON, Judge.

Plaintiff and defendant are adjoining landowners, each owning a plot of ground forty feet wide and facing on the public street.Both parties have erected filling stations on their respective parcels of land and are competing with each other at said filling stations in the business of selling gasoline, motor oils, and automobile accessories.The object of this suit is to restrain the defendant from maintaining a fence on his lot adjacent to plaintiff's lot, which fence plaintiff claims will prevent his customers from being able to drive up to plaintiff's tanks, with the result that it will ruin and destroy a great percentage of plaintiff's business.

The petition alleged that said fence was wholly unnecessary and of no benefit to defendant; was being built for the sole purpose of injuring, harassing, and destroying the business and trade of plaintiff; and that the building and constructing of said fence was arbitrary, unjustifiable, wanton, and malicious.

The trial court, after a hearing, granted a permanent injunction, and from said decree defendant prosecuted this appeal.

The evidence shows that the filling station of plaintiff and the filling station of defendant are both located on the west side of Coffman Street in the city of Flat River, Missouri.Plaintiff's property is north of that of the defendant.Gasoline pumps are located on both parcels of ground.The plaintiff's pumps are located on what the witnesses describe as an island.Between this island and the building on plaintiff's property immediately west of said island is a driveway ten feet and ten inches wide.Cars are serviced on both sides of the island.The distance from the south end of plaintiff's pump island to the line of the Standard Oil property is fourteen feet and two inches.Defendant proposes to build the fence on its own property just inside this division line.

Plaintiff's only complaint with respect to the fence at this location is that such a short space will be left between it and the pump island that serious inconvenience will result to customers of plaintiff who drive in and out at the south end of his premises.In other words, plaintiff's real contention is that defendant should permit the use of its land as a part of the right of way to plaintiff's land.

We cannot conceive upon what theory plaintiff's claim to an injunction can be sustained.The right to injunction must be predicated upon the wrongful and injurious invasion by the defendant of some right existing in the plaintiff.Plaintiff claims no right of way in defendant's premises, either by prescription or by grant, which might be protected by injunction.The act sought to be enjoined is an incident of ownership, which is not a nuisance.Nor is it prohibited by statute, ordinance, or valid covenant.One may not be enjoined from doing lawful acts, to protect and enforce his rights of property, simply because inconvenience is created to third persons who make use of adjoining property.There must be something more, such as an injurious invasion of a fixed and determined property right, or a use creating a discomfort in the enjoyment of the property which threatens the health or welfare of the occupant, with resultant injury to property.The fact that the act injures the property for use from a commercial standpoint, as is attempted to be shown in this case, is not sufficient to invoke the aid of a court of equity.

The principles applicable are well stated in an opinion by the Supreme Court of Ohio in Letts v. Kessler, 54 Ohio St. 73, 42 N.E. 765, 766, 40 L.R.A. 177.In that caseplaintiff sought to enjoin the erection of a fence by defendant upon his property, alleging that it would deprive plaintiff of light and air; that said fence was not being erected for any useful...