163 A. 910 | Pa. | 1932
Argued October 3, 1932.
Appellant's filling station was constructed pursuant to a permit issued by the City of Johnstown under its zoning ordinance, and according to regulations enforced by bureau of fire protection, department of state police. The conduct of its business is not a nuisance per se: Carney v. Penn Oil Co.,
Appellant's filling station, consisting of a one-story, concrete-block office, three underground one thousand gallon tanks, and three service pumps, was constructed on a lot 38 feet on Franklin Street and 62.2 feet on Locust *360
Street in Johnstown, a city of the third class. The station replaced two old frame buildings that had been used for business purposes. By the zoning ordinance, the lot is in the "main business district," a fact to be considered, though not decisive: Perrin's App.,
The record also contains the following findings: "8. That if the defendant erects and operates a filling station [it was erected when the case was tried] on the lot aforesaid there will be odors, noises and dangers connected with the business which will disturb the plaintiff in the peaceful enjoyment of its property, and will also endanger the lives and safety of the children and other persons attending the Sabbath School and the other services held in said church. 9. That there will be more than the ordinary danger of explosions and fires incident to defendant's business from the storage of gasoline which will be in the containers on said premises and which may and is likely to find its way into the basement of the building and be ignited by the flames which are constantly burning in said basement. 10. That it will be impossible for the defendant to successfully conduct its business on said lot so as to avoid noises, disagreeable odors as complained of by the plaintiff, which are necessarily attendant upon the maintenance of a service station of the size and character as indicated by the evidence in this case."
The evidence is that defendant's station was constructed in accord with approved plans and specifications for such structures and according to the requirements of the bureau of fire protection. Each tank, covered with asphalt paint, is imbedded in the ground on a six-inch concrete base; it is packed in loam, with the top more than two feet below the surface. A supervisor, connected with the bureau of fire protection, testified that there were "between 80,000 and 120,000 tanks and drawing-off devices approved under our regulation" in the State. He inspected this station. The tanks are constructed of material slightly heavier than required by the regulations; each pump is equipped with a visiguage, which "will show leaks in the line to a point *363 where it passes on to the tank, two or three inches from the bottom." He testified that, to minimize the danger of explosion, provision was made to carry off fumes or vapors by "an open vent pipe . . . . . . extending to a point twelve feet above the source of supply . . . . . ."; he described the device, or screen, installed at the end of the pipe, to prevent a flame from flashing back into the tank; the flame is arrested by the screen and simply burns like a torch, and does not explode.
The church windows, opened only during the summer, are on the side opposite the station. A member of the church, called on its behalf, testified: "I would say that the auditorium is not occupied except on Sundays. Q. Would you say that any of the noises that you speak about would interrupt any church service except those held on Sunday? A. I don't hardly think they would. Q. And they would not be interrupted except during the warmer weather when the windows on the north side of the building would be open? A. Yes." Another member testified that he "would not be disturbed by it. Noises don't bother me that much."
Asked about the odors, he said: "My point is that the [station] is directly opposite the auditorium of the church and the noises and smells would come directly into the auditorium. Q. What odors do you get in the auditorium? A. Well, it depends on what the odors are outside. Q. Well, from this gas station, what more odors have you got? A. We haven't gotten any yet." While the evidence will not sustain a finding that defendant's station is in a residential district, we are not clear that the learned chancellor would have held that the use of the land was a nuisance, if he had found that the locality was commercial. In examining the findings quoted, we first note that it has long been settled that "Bills to restrain nuisances, must extend only to such as are nuisances at law, and that the fears of mankind, though they be reasonable ones, will not create a nuisance": quoted in Rhodes v. Dunbar,
The decree is reversed, the bill is dismissed without costs to either party. *365