Phillips v. Allingham

• Decision Date: 05 June 1934
• Docket Number: No. 3891.,3891.
• Citation: 33 P.2d 910,38 N.M. 361
• Parties: PHILLIPSv.ALLINGHAM et al.
• Court: New Mexico Supreme Court

38 N.M. 361

33 P.2d 910

PHILLIPS

v.ALLINGHAM et al.

No. 3891.

Supreme Court of New Mexico.

June 5, 1934.

Appeal from District Court, San Miguel County; Armijo, Judge.

Suit by P. S. Allingham and others against W. W. Phillips. Judgment for plaintiffs, and defendant appeals.

Reversed and remanded.

Danger itself, not entertained fear thereof, furnishes true basis for injunction against maintaining nuisance.

Hunker & Noble, of East Las Vegas, for appellant.

J. R. Modrall, of Las Vegas, and Charles W. G. Ward, of East Las Vegas, for appellees.

SADLER, Justice.

The appellant was defendant below, the appellees plaintiffs. The alignment of the parties at the trial will be observed in referring to them here. The defendant appeals from the judgment of the district court of San Miguel county permanently enjoining him from having, maintaining, or operating in connection with his filling station located at the northeast corner of the intersection of Twelfth street and National avenue on the old Midway Garage property in the city of Las Vegas, N. M., two above-ground gasoline storage tanks each having a capacity of 12,000 gallons.

The case is presented to us in a peculiar, if not to say anomalous, manner. The plaintiffs filed their amended complaint seeking the relief ultimately awarded, to which amended complaint the defendant demurred. The demurrer was overruled, and defendant granted a stated time within which to answer or further plead. He did file an answer and the plaintiffs a reply thereto. This we gather from the recitals in the judgment, for the answer and reply are not incorporated in the transcript before us. Thereafter a trial was had upon the conclusion of which the court made its findings of fact and rendered judgment based thereon permanently enjoining the defendant as stated above. The defendant's exceptions to said findings, as well as to the court's refusal of certain findings and conclusions requested by him and to the decree itself, are incorporated in the judgment. Likewise there is contained in the judgment an order granting defendant an appeal therefrom to this court and fixing the amount of supersedeas upon such appeal.

In his amended præcipe for record on appeal, which brings up only portions of the record proper, and nothing by way of a bill of exceptions showing what evidence was introduced and considered at the trial, the defendant sets out the questions he desires to have reviewed as follows: “That the question which defendant desires to have reviewed by the Supreme Court of the State of New Mexico upon this appeal is whether the District Court erred in its judgment ordering an injunction to issue restraining the defendant from storing gasoline in above-ground tanks as a nuisance and whether the amended complaint filed in said cause stated facts sufficient to constitute a cause of action and whether said District Court erred in overruling the demurrer to said amended complaint.”

[1] Notwithstanding the well-established rule that a party by answering waives his demurrer, the defendant here relies upon these two points for reversal, to wit: (1) That the complaint fails to set forth facts sufficient to constitute a cause of action thereby depriving the court of jurisdiction to render judgment on such a complaint (then setting forth the respects in which it is claimed the complaint falls short of stating a cause of action); and (2) that the trial court erred in overruling defendant's demurrer to said complaint.

We recognize, of course, a certain limitation on the well-established rule above adverted to in that the failure of a complaint to state a cause of action is jurisdictional and, although the basis of demurrer not stood upon below, might still be renewed in this court. Nevertheless, when so raised here we must consider the point in the light of another rule applicable in testing the sufficiency of a complaint after trial, viz. the doctrine of aider by verdict or findings.

Oddly, the plaintiffs seek no advantage from the anomalous manner in which the question at issue is presented to us. They seem willing enough to have the basic question raised determined as if actually defendant had stood upon his demurrer below and suffered judgment to be entered against him. They have even stipulated with defendant in this court as to the existence of certain facts from which we take it that the amended complaint is to be deemed further amended by the inclusion of these facts which were before the trial court at the time it passed upon defendant's demurrer.

Faced with such a situation, we can only consider defendant's arguments as a challenge to the sufficiency of the facts found or admitted to support the judgment rendered. Any other view of the matter would be unfair to the trial court in denying to its judgment the benefit of whatever aid may result to the complaint by reason of the findings adduced from the evidence. We accordingly address ourselves to a study of the facts found or undisputed to ascertain if they support the judgment rendered.

Three of the plaintiffs were found to be owners of property within a radius of 100 feet of the location of the storage tanks of defendant. One of them owned a garage 85 feet distant across Twelfth street. The other two owned residence properties in which they reside with their families, the one within about 50 feet and the other within 97 feet of the storage tanks. Located just across National avenue from defendant's property with defendant's filling station between it and the tanks is Continental Service Station. Across Twelfth street and 112 feet northwest from the tanks is located a blacksmith shop.

The tanks are located outside the fire zone prescribed by the ordinances of the city of Las Vegas, not in any exclusive residential section of the city, and on property used and denominated as industrial property. The area in the vicinity of the tanks appears devoted chiefly to industrial and commercial pursuits with a few residences still surviving the encroachment of industry.

Certain findings embraced in the judgment in the language of the court are as follows:

“That gasoline and other petroleum products so stored and to be stored in the said tanks are highly inflammable and explosive and are dangerous to life and property. That said storage tanks do not furnish adequate protection against fire and explosion and that such tanks are subject to breakage and injury from external sources, thus resulting in the escape of the highly inflammable and explosive contents thereof.

“That there are numerous wooden buildings and other buildings constructed partly of wood and partly of other materials near the said storage tanks, and that in the event of fire in this vicinity exposing the said tanks to heat, the said tanks may explode with great violence and injury to the lives and property of these plaintiffs and other people residing and owning property in this vicinity.

“That the said storage tanks and their erection and maintenance in their present location is a great danger, menace and hazard to the lives and property of the said plaintiffs as adjoining property owners and residents.

“That the said gasoline storage tanks will result in an increase in the fire insurance rates on certain property of these plaintiffs and on certain other property in this vicinity, and will also result in a decrease in the value of the property adjoining the said gasoline storage tanks.

“That the plaintiffs, P. S. Allingham, Minnie E. Clay and Gregorio Alirez, and other residents in this vicinity close to the said storage tanks, have an actual and reasonable fear of the said storage tanks as a danger to their property and to their lives. ***

“That the defendant, W. W. Phillips has erected two steel storage tanks in the rear of the filling station located at the corner of National Avenue and 12th Street in the City of Las Vegas, New Mexico. That one of said tanks is used for the storage of gasoline and the other for the storage of fuel oil.

“That said tanks are constructed of 10-gauge steel sides with 3/8 inch ends, said tanks being entirely of welded construction and are set on steel piers 7 feet high, said piers being fastened to concrete piers set in the ground.

“That said tanks are each of approximately 12,000 gallons capacity.

“That said storage tanks are filled by pumping the contents thereof through underground pipes from tank cars on the Hot Springs Branch of the A. T. & S. F. Ry. directly to said tanks and that in filling said tanks none of the contents is handled in the open.

“That gasoline is drawn from said storage tanks through automatic pumps located in the front end of said filling station and is not handled in the open near said storage tanks.

“That said storage tanks are installed on property used and denominated as industrial property.

“That the said storage tanks are not located in any exclusive residential section of the city.

“That the defendant has expended in the improvement of said property and the erection of said storage tanks and pipe line leading thereto, the sum of $-.

“That said tanks are constructed of material similar to that of the average of such tanks sold throughout Las Vegas and its vicinity.”

[2] No ordinance of the city of Las Vegas denies to defendant the right to make the use proposed of his property. On the contrary, he had the written consent of the city to install and operate a gasoline filling station on the site in question and to use the street and alley for the purpose of piping oil and gas from tank cars on the Santa Fé track nearby to his filling station. There is an ordinance of the city prohibiting the storing or keeping for purposes of sale within the corporate limits of the city oil in larger quantities than five barrels, and gasoline in larger quantities than ten gallons, except by consent of the city council.

While the written consent attached to the amended complaint does not in express terms authorize d...