State v. Cozad
| Decision Date | 10 March 1923 |
| Docket Number | 24,672 |
| Citation | 213 P. 654,113 Kan. 200 |
| Parties | THE STATE OF KANSAS, ex rel. DONALD W. STEWART, County Attorney of Montgomery County, Appellee, v. ROY COZAD, Appellant |
| Court | Kansas Supreme Court |
Decided January, 1923.
Appeal from Montgomery district court; JOSEPH W. HOLDREN, judge.
Judgment reversed.
SYLLABUS BY THE COURT.
1. NUISANCE--Storage of Kerosene and Gasoline Not a Nuisance per se. The storage of kerosene and gasoline is not a public nuisance per se. Whether or not it becomes a nuisance depends upon the location, or the manner in which such storage is installed and conducted.
2. SAME. The facts examined, and held, not sufficient to support a judgment enjoining as a public nuisance the erection of tanks for the storage of kerosene and gasoline.
Sullivan Lomax, of Cherryvale, for the appellant.
Charles B. Griffith, attorney-general, B. W. Berg, county attorney and W. B. Grant, assistant county attorney, for the appellee.
This is a suit to enjoin defendant from erecting tanks for the storage of gasoline and kerosene on a certain lot in the city of Cherryvale upon the theory that the same would be a public nuisance. The plaintiff prevailed, and the defendant appeals, claiming there was error in the court below, particularly in rendering judgment for plaintiff.
Through Cherryvale the railroad runs north and south. Just west of the right of way is Depot street, fifty feet wide, and west of that is block 20, which is 300 by 310 feet, with a twenty-foot alley running through the center north and south. The east half of the block is divided into six lots. The south lot is vacant; the second one is vacant except for the railroad water tank; the third had a wooden fuel oil tank near the south line and twenty-four feet from the alley, and on this lot, north of the wooden oil tank and twenty-four feet from the alley, are the foundation walls for defendant's tanks. The lot is otherwise vacant. The fourth lot belongs to the city and has a frame storage building on the northeast corner. The fifth has an ironclad building, used as a shop for the sale of oil, greases, etc on the northeast corner, and on the sixth lot are two frame residences. On the west half of the block are one brick and five frame residences facing west. Along the alley are several outbuildings of various kinds. From the proposed location of the tanks the nearest dwelling is eighty-four feet, others in the block are 110 to 160. The ground east is vacant to the railroad tracks, and across the tracks and about 700 feet, are the oil and gasoline storage tanks of the Standard Oil Company situated about the same as to buildings as the proposed location of defendant. South there is no building for 500 feet. North about 800 feet is the main business street of the city. Plaintiff also showed that the erection of the tanks would increase the insurance rate of buildings within 100 feet. If 90 to 100 feet, 10 per cent; if closer the rate would vary and might be as much as 50 per cent increase, there being no increase for buildings more than 100 feet away. A witness who had been chief of the fire department at Independence for several years testified that gasoline and kerosene are highly inflammable and explosive; that the fumes explode when confined, and that the fumes have been known to travel 400 feet and ignite, and gave it as his judgment that the tanks would constitute a fire hazard and a nuisance. A witness residing on the west side of the block testified that the construction and erection of the tanks would decrease somewhat the value of his property and lessen the enjoyment and use thereof, and a witness residing in the northeast part of the block said it would disturb her peace somewhat and that she would rather it would not be there. "It does not make me feel any safer." A witness testified that the railroad company has a rule not to permit gasoline tanks on their right of way nearer than 100 feet from stock yards, 150 feet from a freight depot, or 600 feet from a passenger depot. The...
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