National Refining Co. v. Batte

100 So. 388 | Miss. | 1924

Ethridge, J.,

delivered the opinion of the court.

The appellee, Batte, filed' a bill in the chancery court against the appellant, alleging that the complainant had resided for many years in quiet and peace at No. 915 Grand avenue, Jackson, Miss.; that his home and residence fronts northwest, and is just opposite the point of intersection of Grand avenue with West Capitol street in said city; that the two streets intersect at a sharp angle, this forming a triangular tract of land just across Grand avenue, in front of complainant’s house; that the defendant has acquired and is using as a public oil and gasoline filling station this triangular lot; that the erection and use of this filling station has caused the continuous presence of automobiles and auto trucks in and about the complainant’s residence, with their attendant noise and confusion and annoyance, to the complainant’s injury and damage; that the defendant has built and provided a driveway or entrance to said filling station, so as to provide entrance both from Capitol street and from Grand avenue across and through said triangular lot; that said driveway is so placed that the headlights from automobiles and trucks, coming into the filling station for gasoline and oil, at the invitation and solicitation of the defendant, come into said filling station from Capitol street, and at night or in the evening throw their lights directly upon and into the residence of complainant; that Capitol street is the main and principal thoroughfare for automobiles running east and west in said city, and that most of the automobiles which enter said filling station do so from Capitol street; that the lights and glare from such automobiles so using the defendant’s filling station and facilities are after dark directed almost continually upon complainant’s residence, to the extent that he is unable to sit or rest upon the front porch of his house with any comfort or pleasure; that said lights or glare from such automobiles penetrate into the interior of said house, and so render it difficult to sleep or to maintain any privacy therein, and have rendered it practically valueless as a home, to complainant’s great damage; that the conditions above described and complained of were caused directly by and at the instance of the defendant in the use of said property as a filling station, and that' the injuries complained of necessarily follow from such use or adaptation by the defendant of said property, and peculiar to and specially suffered by the complainant, and are of a kind and degree distinct from and not sustained or suffered by the general public; that prior to the erection of said filling station complainant, being apprised of the plans of the defendant, protested both to the city of Jackson and to the defendant against the erection of said filling station, but that nevertheless, and with full knowledge of such protest, and in willful disregard thereof, said defendant erected said filling station, and thereby caused the injuries and nuisance'hereinbefore set out; that the acts of said defendant constitute a continuous nuisance to the complainant, and have caused and will continue to cause irreparable injury'and loss to said complainant; that complainant is without adequate remedy at law in the premises.

The bill prays for an injunction against the defendant, to restrain and enjoin it from maintaining said filling station in the manner set out above, and from doing and permitting the injuries and nuisance above described, and prays for a temporary injunction, and that upon final hearing that said temporary injunction be made perpetual, and for an assessment of damages in the sum of two thousand five hundred dollars.

This bill was demurred to on the grounds: First, that there was no equity on the face of the bill; second, that it appears affirmatively from the bill that the defendant was in the possession of its property for lawful purposes, and that no cause of' action accrues therefrom; third, that the hill fails to aver such invasion of the complainant’s property as would entitle him to relief under the law; that the defendant Is in no way responsible for the use made of the property owned by it, so long as said use is lawful, and that to grant to complainant the relief sought would be to deprive the defendant of its property without due process of law. The demurrer was overruled, and an appeal granted to this court to settle the principles.

It is argued by the appellant that the damages suffered by the defendant are merely such as result from city life, and especially under modem conditions; that its business as a filling station is not a nuisance per se, and therefore cannot be controlled by the court. The damages alleged in complainant’s bill are not merely such as result from city life and the use of the streets by automobiles, but under the allegations of the bill are the result of an invasion of complainant’s premises by reason of throwing the lights and glare from the headlights of automobiles upon and into his house in a different degree and in a different manner from what we would suffer from the use of the streets in the ordinary and customary use thereof by automobiles and other vehicles. The bill alleges that the driveway of the defendant’s filling station is constructed across the lot of defendant from street to street, so that automobiles and auto trucks may approach and enter the filling station in a different way-from that in which the filling station could be approached by the ordinary use of the streets; the allegation being that the driveway is so constructed that automobiles, on entering the filling station from Capitol street and while being served by the filling station, throw their lights directly upon and in to complainant’s residence.

The bill avers that the residence was situated where it is, and enjoyed as a home by the complainant, for many years prior to the erection of defendant’s filling station, and that prior to the erection of said filling station complainant protested against the erection of same across the street in front of his residence. While it is true that a filling station is not a nuisance per se, still it may constitute such a use or invasion of another’s property as to cause serious injury, or in some cases almost a complete destruction of a residence as a home and place for rest and sleep.

The right to use one’s property, whether in a city or not, is'not without reasonable limitations. The precise limits of one’s liberty to-do as he pleases with his own property are often difficult to define. Property may not be used to the extent of destroying the value of other people’s property, who have the same right to the use and enjoyment of property as any other owner has. A person living in a city, of course, for the benefits derived from being so situated, must give up some of his rights, and must suffer such inconveniences as only affect the public at large. It is manifest that to construct an approach or entrance across a lot from street to street may occasion an injury. If such approach were laid out as a public street, the damages resulting to the adjacent property owners would be included in a-condemnation proceeding, and the owner would be compensated for such special damage. The opening of such a way, and inviting the public to travel over and upon such right of way, by the private owner 'of the soil, would also inflict the same damage as if laid out by the public. Of course, a property owner has a right to engage in commerce and to use his property for that purpose; but in doing so he must so conduct the business as not to interfere unreasonably with the rights of the adjacent property owners. The filling station probably could be operated without the use of the driveway, and it may be that the public could be served by the filling station in such way as would cause the property owner no additional inconvenience by the use of the streets, or by laying out the driveway in such way as to cause no additional injury.

It is well known that a light from an automobile, when thrown directly into the face and eyes of a person, will cause annoyance, and physical injury if persisted in, and, if the statements of the bill are true, it would be impossible to sit upon complainant’s front porch, and use the porch as a place of rest or pleasure, while such lights were being constantly thrown directly thereon. It is not a case of an owner being in the possession of his own property and using his own property, but it is a case where, in order to use his own property for personal advantage, he causes a physical invasion of the adjacent property, and this he has no right to do. It may be that conditions may warrant the construction of these filling stations at places in a city given over principally to business uses, even though it might result in direct injury to another property owner in the use of his property; but it is clear to our mind that- a place may not be so used where the situation surrounding it at the time of its construction does not bring it within the rule of a business district.

Again, it may not be a necessity to keep a filling station open during the hours of the night when automobiles are operated, or during the hours when headlights are necessary, or it may be that the automobiles could be required to turn off the headlights on entering the driveway of the filling station or prior thereto, so as not to cause annoyance and .discomfort .to the complainant. Whether these things can be done in a reasonable manner, and without annoyance or injury to the complainant, we cannot decide from the allegations of the bill, and if there be any situation which would warrant the use of the defendant’s property for the purpose for which it is used, without undue injury to the complainant, that may arise upon plea or answer.

It is not necessary for a business to be a nuisance per se for it to be restrained as an unlawful interference with the right of another person, for it may be conducted so as to become a nuisance, owing to the manner in which it is conducted, and if business is so operated that it becomes a nuisance, not per se, but from the manner in which it is operated, it may be restrained or abated to the extent that it is unlawfully operated. In King v. Vicksburg Railroad & Light Co., 88 Miss. 456, 42 So. 204, 7 L. R. A. (N. S.) 1036, 117 Am. St. Rep. 749, the court recognized the principles involved in the present suit — that people, although they reside .in a city, are entitled to enjoy their homes free from damage resulting from physical invasion of their property sufficiently to depreciate the value of the property and render its occupation uncomfortable. In that case the nuisance was by smoke, soot, and cinders growing out of the use of locomotives near the premises, brought about by the railway company constructing improvements on its property after the establishment of the home, and the court held that a corporation cannot claim exemption from liability for a nuisance maintained by it in the operation of an electric power plant, whereby property is damaged because it is operated under a charter giving it a right to do business.

In Hamilton Corporation v. Julian, 130 Md. 597, 101 Atl. 558, 7 A. L. R. 746, the supreme court of Maryland held that one residing in the residence district of a municipality may enjoin the threatened erection of a bowling alley and moving picture theater adjoining his residence, if the act complained of will, in the judgment of reasonable men, be naturally productive of actual physical discomfort to persons of ordinary sensibilities and of ordinary tastes and habits, and, in view of all the circumstances of the case, will be in derogation of the rights of the complainant. At page 749 et seq.,’7 A, L. R., there is a case-note treating in detail and setting forth numerous authorities on the right to enjoin threatened or anticipated nuisance. Numerous other authorities are cited in the brief in the present case.

We think it is clear, from the allegations of the bill that the complainant has suffered damages, and will continue to suffer damage, separate and apart from such as result to the general public from the use of the streets by automobiles, and from the nuisance incident to the headlights by such automobiles in the use of the street themselves. The bill states a case where the damage is direct, special, and serious to the particular complainant, distinct from that suffered by the public in general.

The court below having overruled the demurrer, the judgment will be affirmed.

Affirmed.