Waier v. Peerless Oil Co.

• Decision Date: 19 December 1933
• Docket Number: No. 27.,27.
• Parties: WAIER et al. v. PEERLESS OIL CO.
• Court: Michigan Supreme Court

265 Mich. 398

251 N.W. 552

WAIER et al.

v.PEERLESS OIL CO.

No. 27.

Supreme Court of Michigan.

Dec. 19, 1933.

Appeal from Circuit Court, Saginaw County, in Chancery; William H. Martin, Judge.

Action by Joseph Waier and another against the Peerless Oil Company. From the decree, defendant appeals.

Cause remanded with instructions.

Argued before the Entire Bench.

George Grant and O'Keefe & O'Keefe, all of Saginaw, for appellant.

Otto & Holland, of Saginaw, for appellees.

FEAD, Justice.

The action is to abate a private nuisance, arising from the operation of defendant's oil refinery. The court held: ‘That the refining plant of defendant in its process of distillation emits noxious gases, nauseous odors and irritating vapors, and that unusual, unnecessary, loud and disturbing noises are created by the defendant upon its premises, all of which are discomforting and annoying and detrimental to plaintiffs' health.'

The decree required defendant to abate the nuisance before June 15, 1932, and, on failure to do so, ‘it is hereby perpetually enjoined from permitting noxious gases, nauseating odors and irritating vapors to emanate from its said plant, and from creating unusual, unnecessary, loud, disturbing noises in the operation of its refinery.'

Thirty-four years ago plaintiffs established their home in Carrollton township, Saginaw county. The neighborhood is industrial and odorous.

There are only about twenty-five homes in the vicinity. Two hundred fifty feet back of plaintiffs' home are railroad tracks. On the far side of the highway, in front, is another track. Across the road and two hundred feet away is defendant's refinery, erected in 1931. When plaintiffs established their home, a sawmill was operated on the premises now occupied by defendant. Later it burned down and for some years the land was used for pasture.

Forty-seven hundred feet from plaintiffs' home is a foundry, which produces unpleasant gaseous odors. Twenty-five hundred feet distant is the stagnant and smelly open sump of a tannery. Twenty-three hundred feet away is the city dump, proving its presence to the nostrils of the neighborhood. Thirty-seven hundred feet distant is a building in which dead animals are dismembered, to be sent to a rendering plant by trucks. The trucks pass plaintiffs' home. The witnesses are agreed as to the pungency of the odors, which remain long after the trucks have gone by.

The operation of refining oil is practically silent. The noises plaintiffs complain of occur in delivery of crude oil to the plant in railroad tank cars and motor trucks. On a tank car is a dome with iron cover attached by a chain. In unloading, the workmen permit the cover to drop and strike the dome or tank with a loud clang. In addition, there are noises caused by the switching of tank cars, the movement of trucks, and loud talking of employees at night.

An oil refinery is a legitimate business and not a nuisance per se, but it may become a nuisance by reason of fumes being given off. 46 C. J. p. 717. The fact that other plants foul the air with odors does not justify introduction of another cause of discomfort to householders. But their presence is a circumstance bearing upon the degree of annoyance and the scope of relief. The district being industrial, home owners must endure inconvenience of noise and odor which would not be tolerated in a residential neighborhood. They cannot complain of such as arise in the ordinary and skillful conduct of legitimate business so long as their health is not injured thereby. But extraordinary or unnecessary noises or smells which introduce serious annoyances, above those which arise from the ordinary and proper conduct of the business, are actionable. 46 C. J. p. 667; McMorran v. Cleveland-Cliffs Iron Co., 253 Mich. 65, 234 N. W. 163;Dahl v. Utah Oil Refining Co., 71 Utah, 1, 262 p. 269; Thornton's Law of Oil & Gas, vol. 1 (4th Ed.) §§ 664 to 672.

The testimony does not demonstrate that the cars and trucks were handled in an extraordinary manner or with unnecessary noises. Plaintiffs have shown no just cause of complaint in this respect. The clanging of iron covers upon the tanks or domes is an unnecessary noise, easily avoided, and is particularly annoying because of its proclivity to startle a person out of sleep. The loud talking of employees is also unnecessary, easily controlled, and disturbing because of its aptitude to awaken and keep a person awake. In these two items, the noise nuisance exists and plaintiffs are entitled to relief from it.

The testimony as to odors is in sharp conflict and appears to be attended by some exaggeration on both sides, not uncommon in nuisance cases. Plaintiffs complain of occasional nausea, vomiting, dizziness, headaches, irritated eyes and throats, which they attribute particularly to sulphur dioxide and hydrogen sulphide gases from defendant's plant. The latter gas has the smell of rotten eggs and plaintiffs say it penetrates the house, permeates the food, and makes living in their home intolerable. Plaintiffs' daughter said the odor caused her hair to stand on end. Her mother corroborated the assertion. Perhaps, in the interest of accuracy and for the benefit of future scientific research, it should be recorded that the young lady wore her hair bobbed.

Defendant contends its plant produces neither of such gases...