140 A. 133 | Pa. | 1927
Argued December 1, 1927. The purpose of this bill was to restrain as a nuisance the operation of defendant's public service gasoline and filling station at the corner of South Park Avenue and Liberty Boulevard in the City of Erie, located on a lot owned by defendant, upon which it erected and installed elaborate apparatus for use in carrying on its business. The case was heard on bill, answer, replication and testimony. The chancellor found the controlling facts in plaintiff's favor and, from his final decree granting the relief prayed for, the appeal comes to this court.
We have frequently held that whether a particular business or other enterprise is or is not a nuisance depends upon the nature of its location and the character and results of the acts of which complaint is made, and not upon the means by which they are produced: George v. Goodovich,
"The first question naturally arises as to the effect upon the occupants of at least some of the plaintiffs' residences. We will not review all of the testimony relating to the effect, but we will consider as verity the testimony of Mr. and Mrs. Campbell, Mrs. Smith, Senator and Mrs. Nason and Mr. Carney, as to how they were affected by the operation of this gasoline station in regard to noises, vibrations, blowing horns, backing and running forward, pounding on steel, especially when changing tires, racing engines in order to remove carbon, driving heavy trucks so that they shake and even *375 jar some of the residences, and at times starting with a roar; lifting and dropping heavy hoods and tools and explosions of gas from the rear of machines, which sound like a cannon or giant firecracker, and these noises occur both day and night.
"Second, we will consider the testimony of the same parties relating to the effect of the odors, designated by the witnesses, from burned gas, gasoline, fumes, vapors, oil, from crank cases, sinking into the cinder driveway, smoke, dust and even monoxide gas. Taking into consideration these noises, odors, smoke, dust, etc., [they] cause many of the occupants of these houses to become sick, vomiting, nauseating headaches, even driving the people out of their homes, and in the summer time preventing them from using their front porches, and on account of the noises, etc., some of these plaintiffs, at least, are not able to sleep at night and secure their rest."
It is upon such an array of testimony, and much more, as found in the record of the case, that the court below based its findings of fact to the effect that the maintenance of defendant's public service gasoline station, in its present location, is a nuisance distinctly prejudicial to the welfare, comfort, safety and peace of the persons residing in the immediate vicinity, and to some extent, to children attending schools entering Gridley Park, and to other pedestrians passing the plant of defendant company. Our study of the record develops no ground upon which we are justified in interfering with this conclusion.
However, there remains a question, raised by the pleadings below and the assignments of error, that defendant wishes us to decide, and of which we shall here make disposition. Defendant asks, Does appellant's public gasoline filling station, as operated in this residential section, constitute a nuisance? It would seem that what we have already said in the present discussion sufficiently answers the question in the affirmative. Defendant in his brief of argument, differentiates a *376
public gasoline filling station from what is designated as a "public service station" connected with the motor vehicle business generally. While, it is true, none of our decisions on this line of nuisances, so far as we have been able to find, have particularized public gasoline filling stations, places at which gasoline and oils merely are stored and sold to the public, because plants of this exact sort have not figured in the cases that have heretofore come before this court, yet we think our decisions, notably Mitchell v. Guaranty Corporation,
A "public service gasoline filling station," by which expression defendant here designates its plant, is, of course, a place at which gasoline, and usually oils, are stored and supplied, for a price, to the public in general, but it is no less a "public service station," as understood within the scope of the automobile business, notwithstanding tires and other accessories are not there sold nor repairs to motor vehicles made. In both kinds of "stations" the public is served; and it may happen, as it does frequently, that sales of gasoline and oils, repairs to motor vehicles and sales of accessories, are carried on in one and the same station. It is certainly not *377
to be disputed, if we are to be held to a strict observance of the shades of meaning of trade nomenclature in this case, that the plant in question here is a public gasoline filling station only, since its business consists in storing and supplying to the public gasoline and oils, although the chancellor did find that extraneous work was carried on, at least to the extent of changing tires on cars of patrons. Admitting, then, as we do, that the plant in question was exclusively a gasoline filling station, in contradistinction to a station where repairs to motor vehicles are habitually made and accessories sold and replaced, on the premises, was it, as such, a nuisance as operated in the residential section in question. We agree with defendant's assertion to the effect that a gasoline filling station within easy reach is as much a convenience and necessity to the drivers of automobiles as the grocery store and meat market are to the housewife: and we may add, that a like claim may be as properly made for the "public service station," where no gasoline or oil is supplied, but where tires are removed and replaced, and repairs made and accessories sold to the public. We have decided heretofore that public service stations of the latter character, operated in a residential district, constitute a nuisance and must be restrained from operation there, when afflicted citizens come into court and pray for needed relief. In the case of Slingluff v. Tyson,
Attentive study of the facts found by the court below and the exhaustive opinion based on them, clearly discloses that in his consideration and determination of this case the chancellor kept in mind the insistence of defendant that its plant was a gasoline service station and the sole business intended to be carried on there was to store and sell gasoline and oils to the public and that as such, it comes under the designation of a "public service gasoline filling station." We may admit that popular usage may establish and trade necessities require such distinctions in designations of the various industries or enterprises connected with the motor vehicle business, but in no possible manner can the observance of this distinction be helpful to defendant in the present case. It is not the name of the plant nor the means by which it is operated out of which in this case rise the elements that constitute an actionable nuisance. To these, complainants here are not objecting. The question as to what constitutes a nuisance depends upon the nature of the acts of which complaint is made, and not the means by which produced, or the particular description *379
applied to them (George v. Goodovich, supra); a public service station, differing from a garage only in name, is not a nuisance per se, but becomes a nuisance in fact when conducted in a residential neighborhood (Mitchell v. Guaranty Corporation, supra); so also a public service filling station is not a nuisance per se. Whether it be a nuisance depends upon its surroundings, the manner in which conducted or managed or other circumstances, and a court of equity will interfere in a proper case to restrain the operation of a drive-in filling station, though not a nuisance per se: Magnolia v. Wright,
The decree of the court below is affirmed at appellant's costs.