National Refining Co. v. Batte

Citation100 So. 388,135 Miss. 819
Decision Date09 June 1924
Docket Number24164
CourtMississippi Supreme Court

Division B

1 NUISANCE. Gasoline filling station not nuisance per se.

While a public filling station, used to serve automobiles, trucks etc., with gasoline and oil, is not a nuisance per se, still it may be so operated as to be a public or private nuisance and, if so operated, it may be enjoined to the extent of abating the nuisance.

2 NUISANCE. Gasoline filling station held a nuisance.

Generally speaking, a person has the right to use his property for any lawful purpose, and a right of action does not arise in favor of another from such use, even though such use may be annoying or cause inconvenience; but the right to use private property is subject to some limitations, and the precise limits of one's liberty to do as he pleases with his property is difficult to define; but he cannot so use his property as to cause a physical invasion of the property of another person, and the erection of a filling station and driveway thereto in such manner as to invite motor vehicles to enter the filling station over a private way of the owner of the filling station, so as to constantly cause automobile headlights to shine upon and into another's residence, is not such a use as the owner has a right to maintain.

HON. V. J. STRICKER, Chancellor.

APPEAL from chancery court of Hinds county, First District, HON. V. J. STRICKER, Chancellor.

Action by E. A. Batte against the National Refining Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Judgment affirmed.

Green, Green & Potter, for appellant.

The issuance of an injunction to restrain one from performing a lawful act, or to prevent one in the operation of lawful business on one's own property, is one of the most delicate duties a chancery court has to perform, and a remedy will not be granted unless the invasion of complainant's property rights is clear. Green v. Lake, 54 Miss 540; McCutcheon v. Blanton, 59 Miss. 116.

29 Cyc, 1156, lays down the rule that a fair test as to whether a particular act is a nuisance is whether the use of such property is a reasonable one. The text recited in this connection is borne out by many authorities, and we find that the court of appeals of Illinois in Lambeau v. Levinski, 47 Ill. 656, lays down the rule that so long as the use to which a party puts his property is a reasonable one, he is not committing a nuisance, and an injunction will not lie. See, also Ladd v. Granite State Brick Company, 68 N.H. 185; Bowden v. Edison Elec. Ill. Co., 60 N.Y.S. 835, 29 Misc. 171; Phillips v. Lawrence Brick Company, 82 P. 787; R. R. Co. v. R. R. Co., 92 N.E. 989.

Is not the use to which this defendant has placed its property and exercised its right of dominion over this land, a reasonable one? It is necessary that the million or more automobiles throughout the country be filled with gasoline and oil in order that they might operate. A filling station is not a nuisance per se, and if one has a right to operate a filling station, if same is not a nuisance in and of itself, then certainly the defendant in this case had a right to locate its filling station at a place where it would most naturally expect to receive the largest possible patronage.

An owner may make a lawful or reasonable use of his property, although it causes annoyance and discomfort to those in the neighborhood, if such annoyance and discomfort are only slight, and the natural and necessary consequences of the exercise of the owner's rights in the development of his property. When a man moves to the city, he must, of necessity, suffer the annoyance and inconvenience of city life. If he desires the advantages which are to be found therein, he must put up with the attendant discomforts, annoyances, and inconveniences. When he moves to town he cannot expect the same pure air, freedom from noise, or the same privacy he would expect to find in the country. 29 Cyc, 1159. One of the leading cases this subject from England is that of St. Helen Smelting Co. v. Tipping, 11 H. L. Case, 642. See, also, Goss v. Coryell, 126 S.W. 1164; Miller v. Webster City, 62 N.W. 648; Gilbert v. Showerman, 23 Mich. 448.

Perhaps, the best statement of this rule is laid down by the appellate division of the supreme court of New York, in the case of Peck v. Newburgh Lt., Heat & Power Company, 116 N.Y.S. 433.

From a careful reading of the bill, we are of the opinion that the court will find that the most that can be said of complainant's contention, is that the defendant in this case has been the cause of some annoyance to him. That the only thing Batte is complaining of is a condition ordinarily incident to city life, is brought home from reading section 9 chapter 116, Laws of 1916, requiring motor cars to have lights. The real complaint of Mr. Batte is with reference to the lights that are thrown upon his house. Can it be said that where the law definitely and positively prescribed the number and kind of lamp that automobiles shall carry after nightfall, defendant's business can be wholly stopped because its patrons comply with the state and city law in this respect?

Filling stations are not nuisances per se. If not nuisances per se, then a filling station that is being conducted in an ordinary manner in which filling stations are generally conducted, cannot be enjoined as a nuisance. Julian v. Golden Rule Oil Co., 212 P. 884; Hanes v. Carolina Cadillac Co., 97 S.E. 163; Great Northern Refining Company v. Lutz (Ky.), 227 S.W. 795; Shuman v. Livingston, 128 N.Y. 581.

This being so, then, unless complainant has alleged that this particular station is carried on in some manner different from that in which filling stations are usually and customarily operated, it follows that this station is not a nuisance, because if a filling station as usually and customarily carried on is a nuisance, it is originally a nuisance per se. On this precise question, see Morris v. Roberson, 127 S.W. 481. There are two grounds here upon which complainant states that the injunctions should be issued, and these are: (1) That the automobiles patronizing defendant's station produce a large amount of noise, and (2) that the headlights of these automobiles throw out a glare. Certainly noise is to be expected from all automobiles when they start, and certainly this is one of the incidents of all filling stations, and defendant's station, in this respect, is no different from that of any other filling station. The same is certainly true with respect to the lights from the patrons' cars. It then follows that if defendant's filling station is operated as filling stations ordinarily are, and a nuisance is created thereby, the filling station is in itself a nuisance, and we have found that such is not the case. This precise question was passed upon by the supreme court of Iowa in Mitchell, et al., v. Flynn Dairy Company, 151 N.W. 434, in which a bill for injunction was filed against the milk company, complaint being made of the noise in loading and unloading milk by farmers who brought same to the defendant company's factory, and sold it, and also of the odor of the offal of the horses of these farmers. The evidence showed that a large number of farmers daily came to defendant's factory bringing milk for sale to the defendant. In disposing of this feature, the supreme court of Iowa said: "We think this defendant is not chargeable with the conduct of these persons. They alone were chargeable with such misconduct." Thus we find that in the eyes of the law, no act committed by the defendant caused complainant any annoyance or inconvenience, but that all the acts complained of were committed by the public, and, as laid down by the supreme court of Iowa, this defendant is not chargeable with the conduct of these persons, and they alone are so chargeable with such misconduct.

Alexander & Alexander, for appellee.

The controlling issues involved herein can be stated in a single sentence. Does the operation of the business of this particular defendant (appellant) constitute a nuisance to this particular complainant (appellee)? The "business" of the defendant must be considered in terms of its general character not only but also in its location and especially the necessary incidents of its operation. The word "nuisance" is not susceptible of exact definition. Illustrative examples of judicial description are as follows:

A "nuisance" may be anything which essentially interferes with the enjoyment of life or property. Murden v. Commissioners of Town of Lewes, 96 So. 506, 6 Boyce, 48. A "nuisance" is anything that worketh hurt, inconvenience or damage to another. Jones v. F. S. Royster Guano Co., 65 S.E. 361, 6 Ga.App. 506.

A thing may or may not be a nuisance according to the manner in which it is used, the situation in which it is placed, or the time it has been carried on without complaint, when measured by the mind and taste of the average citizen. Densmore v. Evergreen Camp No. 147, Woodmen of the World, 112 P. 255, 61 Wash. 230, 31 L. R. A. (N. S.) 608, Ann. Cas. 1912 B, 1206.

In determining whether a lawful business is a nuisance, locality must be considered; for a business proper in a business neighborhood may be a nuisance when carried on in a residential district. Hall v. Carter, 157 S.W. 461.

A business may become a nuisance, where it is not conducted with due regard to the rights of surrounding property owners, and renders the enjoyment of their property impossible. Nowak v. Baier, 77 A. 1062, 78 N.J.Eq. 112.

We do not care to enter a discussion as to whether filling stations are per se nuisances. The complainant's bill is predicated rather upon the manner of operation of this...

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