Purcell v. Davis

• Decision Date: 15 October 1935
• Docket Number: 7427.
• Parties: PURCELL et al. v. DAVIS et al.
• Court: Montana Supreme Court

50 P.2d 255

100 Mont. 480

PURCELL et al. v. DAVIS et al.

No. 7427.

Supreme Court of Montana

October 15, 1935

Appeal from District Court, Glacier County; R. M. Hattersley, Judge.

Suit by Arthur Purcell and another against Kenneth Davis and others. From an adverse judgment, the plaintiffs appeal.

Judgment affirmed.

S. J Rigney, of Cut Bank, and D. W. Doyle, of Conrad, for appellants.

S. C Ford, of Helena, and Russell E. Smith, of Missoula, for respondents.

MATTHEWS Justice.

In November, 1934, the plaintiffs, Arthur and Amelia Purcell instituted proceedings against the defendants, Kenneth Davis and R. C. Tarrant, copartners doing business under the name of the Cut Bank Refining Company, to enjoin the erection of a refinery or topping plant for the refining of crude oil in a residential district of Cut Bank, the county seat of Glacier county. The allegations of the complaint are that the plaintiffs are the joint owners of a lot on which three houses stand, one occupied by the plaintiffs and two by tenants, all of the reasonable value of $12,500, abutting on Main street of the city and directly across the street from the city park, used for athletic sports; that the westerly line of the proposed site of the refinery is but 430 feet distant from the easterly line of plaintiffs' property and 20 feet above it in elevation, and the natural drainage is from the site to and across plaintiffs' lot; that the streets on three sides of the site are extensively traveled by the plaintiffs and others; that the defendants secured a permit from the city without notice or opportunity to protest the erection of the refinery on that site; and that the defendants have taken no steps or gone to any expense toward its erection. These allegations are not controverted.

The complaint then alleges that the erection and operation of the plant on the proposed site will create a nuisance by reason of the escape of fumes, gases, and noxious vapors heavier than air, which will settle upon plaintiffs' property, and the danger of explosion, fire, and drainage of waste matter from the plant. It is further alleged that the proposed establishment of the plant has caused a material depreciation in the value of plaintiffs' property, and that the erection and operation of the plant will destroy its value as residential property. The prayer is that the erection be enjoined and plaintiffs awarded $1,500 damages for loss already sustained.

Issue was joined by a general denial, and the cause was tried to the court. On the evidence adduced, the court made findings of fact and conclusions of law in favor of the defendants and entered judgment denying plaintiffs any relief, awarding the defendants their costs, and closing with the declaration: "This judgment is given without prejudice to the rights of the plaintiffs to pursue or assert any remedy or remedies, at law or in equity, on any cause or causes of action which may accrue to them on account of the operation of the said refinery."

The plaintiffs have appealed from the judgment. They make numerous assignments of error which, in the aggregate, but challenge the sufficiency of the evidence to support the findings of fact made, and the court's conclusions of law thereon.

The testimony on behalf of the plaintiffs was brief, but may be said to substantiate all the material allegations of the complaint. In addition to positive testimony on the subject of injury, the plaintiffs and others testified to conversations with the defendant Davis, in which he is quoted as saying that the operation of the plant would injure all of the objectors "somewhat, but Mr. Purcell would be injured most," and "there might be some offensive odors and fumes, but very little, he thought." Davis was sick at the time of the hearing and did not testify.

To establish the allegation that the operation of the plant would constitute a nuisance, plaintiffs relied upon the testimony of M. C. Harrington, who had worked in and about oil refineries for about fifteen years. Testifying for the plaintiffs, Wayne Hart, manager of the defendants' refinery in operation some 9 miles from Cut Bank, described the plant it was proposed to erect, i. e., a plant similar to that in operation, each having a capacity of 300 barrels per day, but the new plant to have a greater storage capacity. Harrington testified that such a plant would give off more fumes than "an ordinary up-to-date refinery;" that the fumes would be of a "bad odor," offensive to most people, heavier than air; they would tend to creep along the ground, causing a sickly feeling and loss of appetite; that these fumes give off sulphur which settles a half mile or more from the plant and ruins vegetation and tarnishes silverware. The witness, however, stated that the distance fumes, gases, and the like would carry depended upon the direction of the wind and "climatic conditions," but could always be smelled on the ground at the plant. He testified that the tanks of the proposed plant would be too close together for safety in case of fire or explosion; that he had witnessed fires and explosions at such plants, and that the effect thereof might be felt four to five hundred feet distant; and that he had never known of a refinery built in a residential district. On cross-examination the witness admitted that he had never worked in the Cut Bank district, and that, while the refinery in which he worked at Shelby refined some Cut Bank crude oil, it refined Kevin and Pondera crude, and that the Cut Bank crude has a much lower sulphur content than the Kevin and some less than the Pondera. The witness insisted that any stored gasoline would give off offensive odors.

On behalf of the defendants it was shown that the Cut Bank crude contained but 5/1000 of 1 per cent. sulphur. Hart testified that he had lived within 150 feet of the Cut Bank refinery for a year and a half; that no offensive odors escape from it; and that no discomfort has resulted to any person living near the plant. Mrs. Pearl Davis testified that she lived near the plant and has never noticed any obnoxious odors from its operation and her silver has not become tarnished, nor has her appetite ever been affected.

Two witnesses testified that they had visited the present plant and that there was no more smell about it than about the ordinary service station. It was then shown that the intended location of the plant would be on the extreme portion away from plaintiffs' property, a distance of 720 feet from plaintiffs' east line and 820 feet from the dwelling houses, and that the prevailing winds are from plaintiffs' property toward the proposed site.

E. M. Parkin, a graduate from the Montana University and with a Master of Arts degree from the University of Michigan and who testified, "I took my thesis Petroleum Engineering," and who had been in charge of the gasoline plant of the Montana Power Gas Company at Cut Bank for more than a year, testified as an expert on the subject of handling gasoline. He stated that the "Casing head" gasoline he handled was more volatile than that handled at refineries, but that there was not sufficient vapor escaping from his operations to cause a fire hazard, and that there is no inherent danger in storing or in refining gasoline, if proper safeguards and precautions are taken. The witness stated that there were residences around the plant of which he is superintendent, and that, "We don't consider we are living in a hazardous place." It developed during his cross-examination that what was meant by an "up-to-date plant" was the use of the "Dubbs process or cracking process," while the defendants used the skimming process; the witness testified that the latter process was no more dangerous than the former.

At least half a dozen witnesses testified that there is nothing inherently dangerous in the operation of a refinery as this one would be operated, nor in the storage of large amounts of gas, oil, and other products. It was demonstrated that the plant would be so supplied with catch basins and reservoirs...