R. H. Hazlett, Isabella Hazlett, his wife, Anna Ander
The following is a copy of a plat, marked “Exhibit A,” attached to the bill of complaint and incorporated therein by reference:
It shows the various tracts of land and the various uses made thereof in the vicinity of the filling station site.
The filling station site is located in block 17 at the intersection of Washington street and Central avenue. The residence of the ITazletts is in block 17, immediately south of the filling station site. The residence of Anna Anderson is on the east side of Washington street, immediately оpposite the filling station site. The Presbyterian Church is on the north side of Ceneral avenue, opposite the filling station site. The Baptist Church is on а tract of ground fronting on Washington street and Central avenue south and east of the Anderson residence.
From the foregoing it will bo seen that the lоts adjacent to the filling station site are not used exclusively for residential purposes, but that there is located thereon a public school, a grocery store, a studio, a public library, a public hall, and live churches.
The bill alleges that the properties of the plaintiffs are located in a strictly residential neighborhood; but this, as we have already shown, is refuted by the plat whieh is incorporated in and made a part of the bill.
The bill further alleges that if such filling station is erected and placed in operation at the above site, it will be dangerous for children tо cross the entrance to the station, there will be traffic congestion at the intersection of Central avenue and Washington street, lights will gleаm and flash in the windows of plaintiffs, disturbing noises will occur, the fire hazard will be increased, disagreeable odors will invade plaintiffs’ premises, fumes will kill plaintiffs’ trees and shrubbery, and the value of plaintiffs’ property will be depreciated.
Equity will not grant an injunction to prevent an anticipated nuisancе, unless it clearly appears that such nuisance will result from the contemplated act or thing sought to be enjoined. Wergin v. Voss,
A drive-in gasoline and oil filling station is not a nuisancе per se. Julian v. Golden Rule Oil Co.,
The locality in which a business establishment or an industrial plant is situated in
In the ease of Thompson v. Evangelical Hospital Ass’n,
' This declaration ■ by the Nebraska court seems to us to be peculiarly applicable to the situation in the instant ease. Transportation is a necessity in a modem city, and the gasoline automobile has beсome the principal vehicle of short distance transportation. Gas filling stations conveniently located are essential. If these stаtions are properly constructed and operated, there is little that is objectionable about them in a business or semibusiness district.
Reverting tо the alleged injurious effects that plaintiffs allege will follow from the construction and operation of this filling station, we find that most of them are already present in the neighborhood. With churches, schools, and public halls already present, of necessity there will be danger to children when crossing the lines of automobile travel. With five churches, a library, and a public hall, in the immediate vicinity, there certainly will be traffic congestiоn at times. Lights from automobiles turning- corners will flash upon the windows of plaintiffs, and the starting of automobiles which have been parked at the churchеs and other public places will cause noises. Yet no one would even suggest that a church, a library, a public hall, or a grocery storе, is a nuisance because of these things.
There are no allegations of fact in the bill which show clearly that the erection and operation of the filling station will increase the fire hazard to a degree that would make such filling station a nuisance. The'bill does not show that the operation of the filling station will increase the fire hazard more than would a grocery store or other like mercantile establishment, and no оne would assert that a grocery store is a nuisance because of the increase of fire hazard. See Julian v. Golden Rule Oil Co., supra.
Likеwise, there are no allegations of fact in the bill which show that disagreeable and dangerous fumes will result from the operation of such filling statiоn. As a matter of fact, they do not occur when a filling station is properly operated.
Mere depreciation in the value of adjоining property is not of itself sufficient to warrant injunctive relief. Dean v. Powell Undertaking Co.,
In Dean v. Powell Undertaking Co., supra, the court said: “The trial сourt found that the value of the plaintiffs’ property for residential purposes will be depreciated. Such findings, standing alone, and not suppоrted by other findings showing that the defendant is maintaining,'or is about to maintain, a nuisance, will not support the judgment. In many instances in populous neighborhoоds the property of one person is depreciated by the near proximity of the property of another. Such burdens are ordinary incidents to residence and ownership in a city.”
While the courts undoubtedly have jurisdiction in proper eases to afford relief, restrictions on the location of commercial establishments, such as these, should ordinarily, in our opinion, be by zoning ordinance, and not by injunctive decree.
Since the apprehended results of which plaintiffs complain largely already exist and will only be increased in degree, other apprеhended results are insufficiently pleaded, the district is largely already given over to commercial and public purposes, and it is not shown that thе construction and operation of such filling station will violate any ordinance or statute, we think the court rightly sustained the motion to dismiss the bill, and the decree is affirmed.