Petroleum Refining Co. v. Commonwealth

• Decision Date: 24 June 1921
• Citation: 192 Ky. 272,232 S.W. 421
• Parties: PETROLEUM REFINING CO. v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

232 S.W. 421

192 Ky. 272

PETROLEUM REFINING CO. v. COMMONWEALTH.

Court of Appeals of Kentucky.

June 24, 1921

Appeal from Circuit Court, Kenton County, Criminal, Common-Law, and Equity Division.

The Petroleum Refining Company was convicted of maintaining a common nuisance, and an order of abatement was issued. Thereafter the commonwealth applied for a writ to punish the defendant for contempt in not abating the nuisance, and the court directed the closing of the plant. From the judgment and the order defendant appeals. Judgment reversed, and cause remanded, with directions to set aside the order and discharge the rule.

Myers &amp Howard, of Covington, and R. E. Westfall, of Columbus, Ohio for appellant.

Chas I. Dawson, Atty. Gen., Thos. B. McGregor, Asst. Atty. Gen and Stephens L. Blakely, of Covington, Commonwealth's Atty., for the Commonwealth.

CLAY J.

During the year 1919, the Petroleum Refining Company was organized, with a capital of a half million of dollars, for the purpose of refining Kentucky crude petroleum and marketing the product. In order that it might have the requisite transportation facilities, as well as the necessary labor to carry on the business, it acquired a site on the main line of the Louisville & Nashville Railroad at a point about a quarter of a mile west of the western limits of the city of Covington, and there constructed its plant. The plant is surrounded on the north, south, and west by farming lands, and on the east by the Latonia race track and the railroad switching yards. Operations were begun in the month of October, 1919. On May 29, 1920, the grand jury of Kenton county returned an indictment, charging the company with the offense of unlawfully maintaining a common and public nuisance, in that its refinery, in the process of distilling oils, "unlawfully, unnecessarily, and unreasonably caused to be emitted noisome, nauseating, dangerous, unhealthy, and destructive gases, fumes, and odors, to the great discomfort, ill health, and inconvenience of the residents and citizens residing in said neighborhood, and also to the injury of their goods and property." The case was not called for trial until March 22, 1921. On March 24, 1921, the jury returned a verdict of guilty, and fixed the company's punishment at a fine of $500. On motion of the commonwealth's attorney, the circuit court entered an order of abatement, directing the company to abate the nuisance of which it had been adjudged guilty, and "to cease to permit said nauseating, dangerous, and unhealthy gases, fumes, and odors to escape from its refining plant, wherein crude oil is distilled, in quantities sufficient to impregnate the air, and to render same offensive and harmful to the health, comfort, and property of individuals."

On April 2d, the commonwealth's attorney filed an affidavit, to the effect that the order of abatement had not been complied with, and asked for a rule against the company to show cause why it should not be punished for contempt for its failure to obey the order of abatement. The rule was granted, and made returnable April 7th. The company filed a response, alleging, among other things, that prior to the return of the indictment they had conducted their plant as other plants were conducted, that is, they permitted the gases and odors to be carried off by the air; but that since that time, out of an abundance of precaution, they had put in use certain devices and appliances by which all odors were neutralized, and all noxious gases were practically consumed. After hearing evidence on the question, the circuit court decided that the nuisance had not been abated, and entered an order, directing the sheriff to close the plant. The company appeals.

On the trial of the indictment, Dr. H. C. White, the county health officer, who was not a practical chemist, but had studied chemistry in his medical course, described the location of the plant, and explained the method employed in the distillation of crude petroleum. He further stated that when the crude oil was heated, certain gases were thrown off. First comes methane, or marsh gas, which is odorless, then petane, which is also odorless. Next in order is gasoline, then benzine, then coal oil, and then the residuum, known as fuel or road oil. Certain impurities, known as hydrogen sulphide and sulphur dioxide, are also liberated. Sulphur dioxide has no odor, but hydrogen sulphide has the odor of rotten eggs. There was no odor at the plant, because these gases are carried into the air through the smokestack, and are then scattered by the prevailing wind, and, being heavier than air, they descend at places some distance from the plant. After having his attention called to the furnace and other appliances used to consume the gas, he was asked if he was of the opinion that any part of the poisonous gases was thrown off after being passed through the furnace. His reply was as follows:

"I want the jury to understand that it is possible for it to be done. This H sub2 S is not consumed under 400 degrees Fahrenheit. I have no way in the world to know they always keep that at 400 degrees temperature Fahrenheit."

He was then asked the following question:

"Q. Then, you don't know whether any of that poisonous gas is thrown out on the community at this time, since the introduction of this gas to the furnace? A. I say I don't know that."

He also stated that from his personal knowledge and experience he could not say that prior to May 24th there was an escape of gas sufficient to produce sickness or illness in the community. He further testified that in the spring of 1920 the paint on a number of houses in the vicinity of the plant was discolored. This was due to the chemical action of the hydrogen sulphide on the lead in the paint. Other witnesses then testified to the prevalence of offensive odors prior to the return of the indictment, and said that the smell was like that which came from rotten eggs.

On the trial of the rule, 13 witnesses testified for the commonwealth. Their evidence in brief is as follows: Dr White testified that since the trial of the indictment he had noticed disagreeable odors in Latonia, and, though he said that the odor was practically the same as it was before, he described the odor as that of burnt gasoline. On cross-examination he stated that there was a number of old vaults in Latonia, which he judged sometimes gave off obnoxious odors. There are also seven or eight engines in use at the railroad yards, which are switching practically all the time. He also explained that there were certain dumps where the garbage of the city was deposited. Harry L. Deming, the manager of the company, testified that since March 22, 1921, there had been no change in the method of destroying fumes arising from the plant. The changes had been made in May 1920, and in the following September. Before the new methods were installed, the gases escaped in the open air. In his opinion, the new...