Julian v. The Golden Rule Oil Company
| Decision Date | 10 February 1923 |
| Docket Number | 23,970 |
| Citation | 112 Kan. 671,212 P. 884 |
| Parties | JOHN W. JULIAN, Appellant, v. THE GOLDEN RULE OIL COMPANY, et al., Appellees |
| Court | Kansas Supreme Court |
Decided January, 1923.
Appeal from Sumner district court; OLIVER P. FULLER, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. CITIES--No Power to Prohibit Construction of Filling Stations in Restricted Residence Districts. Express legislative authority is necessary to give cities the power to create zones or restricted residence districts within a city whereby owners of lands therein shall be prohibited from constructing business houses in which to carry on legitimate lines of business.
2. SAME. An ordinance passed without such authority, which provides that it shall be unlawful to erect a filling station within 100 feet of a residence to be used in furnishing customers gasoline and oil for motor vehicles without the consent of the city commissioners is an arbitrary and unreasonable exercise of municipal authority and is void.
3. SAME--Filling Station Not a Nuisance Per Se. The maintenance of a filling station in the location described herein cannot be regarded as a nuisance per se or a wrongful use of private property which the court may enjoin.
L. H Finney, W. W. Schwinn, E. J. Taggart, and John Bradley, all of Wellington, for the appellant.
Ed. T. Hackney, of Wellington, for the appellees.
This was an action to enjoin the erection of a filling station in the city of Wellington, designed to supply customers with gasoline and oil for use in automobiles. A temporary injunction issued was dissolved by the court, and plaintiff appeals.
He alleged that he owns and occupies lots adjoining the proposed filling station as a home and also for the maintenance of a restaurant. He stated that the purpose of defendant is to install a plant for the sale and delivery of gasoline and other inflammable oils which endanger plaintiff's residence and render it unfit for a home. He further alleged that the city of Wellington had passed an ordinance in 1919 which provides that it shall be unlawful to erect a filling station within 100 feet of any residence in the city without the consent of the city commissioners, and that anyone erecting or attempting to erect one in violation of the ordinance should be guilty of a misdemeanor and fined in a sum not exceeding $ 100.
It is conceded that the defendants had not complied with the conditions of the ordinance, and further, that there had been no enforcement of it by the city. Plaintiff's property extends to within 60 feet of the railroad tracks and within 150 feet of the main line of the railroad. It is within a block of the railroad station, and across the street from the property there is a filling station. In the immediate vicinity there is a mill and elevator, an ice plant, carpenter shop, merchants delivery barn, furniture repair shop, etc.
The questions discussed are whether the ordinance is valid, that is, whether the city may pass a zoning ordinance without legislative authority, and second, whether it is so arbitrary and unreasonable in its terms as to be invalid. So far as its being a nuisance which might be enjoined, there is testimony to the effect, from the inspection bureau that the operation of a filling station will not increase the fire insurance rate on adjoining buildings more than would a grocery store, a garage or a dry-cleaning plant. The state fire marshal testified that he was acquainted with the situation and plans of the proposed station, by which tanks were to be buried under the ground, that he approved the methods and regarded such an installation to be safe and would not increase the fire risk or the life risk on adjoining property more than a building used for...
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