138 A. 909 | Pa. | 1927
Argued April 13, 1927. The parties to this litigation own adjoining tracts of land in Delaware County; that of appellant, an 83 acre tract, is used as a farm and residence, while that of appellee, engaged in the business of refining petroleum oil, is a 23.67 acre tract on which large tanks for storage of oil have been erected. The nearest tank is at present 900 feet from plaintiff's land, but it is proposed by appellee to construct two tanks, one 83 1/2 feet, the other 417 feet, from the boundary line. Each tank will store 75,000 gallons of oil or its by-products. A bill for an injunction was filed, averring that the construction and use of these tanks would constitute a menace to the safety and quiet enjoyment of the lands and home of appellant; *408 and that the effect of a fire that might easily ignite the liquid or cause an explosion would bring disaster to appellants for which there could be no adequate remedy at law. A demurrer was filed, which the court below sustained on the ground that appellant's complaint was based on a mere apprehension of danger without adequate foundation. This appeal follows.
The effect of the demurrer was to admit all the allegations of fact contained in the bill, and the inferences reasonably deducible therefrom: Kurtz v. R. R. Co.,
An owner has a right, barring malice and negligence, to any use of his property, unless by its continuous use he prevents his neighbors from enjoying the use of their property to their damage. Such use may, under *409
given conditions, be enjoined. Equitable relief must be predicated on an injurious invasion of a fixed and determined property right. By injury is meant something affecting the capacity of the property for ordinary use or causing a discomfort in the enjoyment of it that threatens the health or welfare of the occupant, with resultant injury to the property. The damages must be of a substantial character: Price v. Grantz,
As affecting personal discomfort solely, the relief must depend largely on the circumstances of the nuisance and the place where the things complained of occur. In this age, persons living in a community or neighborhood must subject their personal comfort to the commercial necessities of carrying on trade and business. Where the individual "is affected only in his tastes, his personal comfort, or pleasure, or preferences, these he must surrender for the comfort and preferences of the many" (Robb v. Carnegie,
One thing is quite certain, equity will not interfere unless its right to do so is free from doubt: Sparhawk v. The Union Passenger Ry. Co.,
The law has determined that some businesses are, under certain conditions, nuisances per se. A nuisance per se, as relating to private persons, is an act or use of property of a continuing nature offensive to and legally injurious to health and property, or both. A given condition may be, at all times and places, a nuisance per se. As related to business, its inherent qualities or elements must be such that it must reasonably follow, in a particular locality or surrounding, that there will be an injury to property or a discomfort to the individual, with a resulting injury to property. The difference between a business, which, no matter how it is conducted, is a nuisance per se as to certain location and surrounding, and a business which is being so conducted as to become a nuisance, lies in the proof, not in the remedy. In the former, the right to relief is established by averment and proof of the mere act; in the other, proof of the act and its consequences is necessary: Dennis v. Eckhardt, 2 Grant 390. A given business is in itself a nuisance per se when it is generally known to be injurious to health and to cause legal damage to property in certain localities and surroundings, regardless of how it may be carried on. "The common experience of mankind, of which the courts take judicial notice, has found, in certain localities and surroundings, certain pursuits to be universally injurious to health and damage to property, no matter how carefully conducted." Such pursuits are, in given places, nuisances per se. The following circumstances attending a business or property that give rise to a nuisance per se are, offensive or noxious odors or smells, undue noise of crowds, music, motors, gambling, improper construction of buildings, and the like, that are injurious to morals, life, health and property. As illustrating a business that is perfectly lawful, becoming unlawful and a nuisance per se as in a certain *411 locality, reference is made to those cases where it has been judicially determined that the business was unlawful near dwellings or in built up sections.
In Evans v. Fertilizing Co., supra, the manufacture of bone fertilizer near the home of a farmer was held to be a nuisance per se because noxious odors and offensive smells were inseparable from the manufacture. This circumstance was a fixed fact, the knowledge of it was common to everybody, the court could take judicial notice of it. The same was true of the use of property in a city as a livery stable (Houghton v. Kendrick,
In all these cases, it must be apparent that an injunction was not granted on the ground of anticipated danger or an apprehension of it, but, when the place and the act are admitted, it has been determined by the courts that certain unavoidable, inherent characteristics of the business injuriously affect health and property. In these cases, the averment of the act, or an attempt to perform it in a place forbidden, is all that is necessary. *412
Where the business is conducted so as to become a nuisance, a different rule prevails. The proof must show that it is conducted in such way as to become injurious. The injury arises from either an improper conduct of business or one that could be remedied. See, for illustration, Sullivan v. Jones
Laughlin Steel Co.,
The two tanks here were not built when this bill was presented; therefore, of course, they were not in operation. In considering the question in this case, we must determine from the disclosed uses to which the property is to be put in the place described, not only whether it possesses the power to do harm, but whether injury will necessarily result from the proposed use, or whether the use subjects the property to such contact with outside agencies that its probable result will be dangerous. Was the contact manifest or certain to follow?
The bill does not charge any such inherent characteristic or any such likelihood of danger. True, it does say that petroleum and its by-products are highly explosive, readily ignited, and susceptible to ignition from lightning, spark, flame, intense heat of the sun, or internal combustion. It does not charge that the natural, the probable result of the building with its contents will be an explosion or a fire. It does not charge that this would be a "plainly manifest" result from placing oil or its by-product in the tank. It does charge that, because it is readily ignited and because it is susceptible to ignition, the result of the use of the building under the circumstances would be a constant menace and danger. All of this is purely problematic or conjectural. Of course, petroleum and its by-products, under the circumstances here existing, are readily ignited, but will they be ignited? Is that likely? Does common experience show it? Is the manner of use as described such that the probabilities are that they will be? The words "readily" and "susceptible" are words of anticipation, apprehension *413 or mere fear, or, as the authorities say, doubtful, eventual, or contingent. The statement that the use becomes a menace is but a conclusion based on these antecedent conjectures.
There is no allegation in the bill that the construction is improper, that the equipment is not of the ordinary and usual kind, or that the regulation of the plant and its supervision is not of the best; nor does the bill aver that there will be a failure to afford proper appliances in its conduct. The business is very generally carried on, and the same complaints as contained in this bill could be made against almost any business. Take, for illustration, gas containers or tanks, storage tanks for automobile use, automobiles, dynamite used in the conduct of business, paper companies using large quantities of paper, or hay in a field or a barn, all are readily ignited and susceptible to flame, sparks, lightning and combustion. To stamp them as nuisances per se without showing, not merely apprehension or anticipation, but that the reasonable and normal result of the use will be a fire and consequent destruction, would greatly widen the heretofore existing scope of equity jurisdiction and greatly hamper necessary business through groundless fears.
What we have said may be summarized briefly in this way: Where it is sought to enjoin an anticipated nuisance, it must be shown (a) that the proposed construction or the use to be made of property will be a nuisance per se, (b) or that, while it may not amount to a nuisance per se, under the circumstances of the case a nuisance must necessarily result from the contemplated act or thing. See 7 A. L. R. 749; 26 A. L. R. 937. The injury must be actually threatened, not merely anticipated; it must be practically certain, not merely probable. It must further be shown that the threatened injury will be an irreparable one which cannot be compensated by damages in an action at law. A mere decrease *414
in the value of complainant's property is not alone sufficient: Rhodes v. Dunbar,
Thus far, we have discussed the question solely from the standpoint of plaintiff's bill and its averments. But there is another question related thereto. We have decided that gasoline in storage in built up sections is not only not a nuisance per se, but it is not dangerous as a fire hazard: Manorville Boro. v. Flenner,
In the case before us, appellee has undertaken to safeguard the plant with all modern appliances, with fire ditches around it, to protect adjoining property, and, with the Manorville Case, appellant's problem becomes *415 more difficult. Plaintiff urgently insists that she should be permitted a hearing and the court below should find the facts. We do not agree with this conclusion. If appellant should prove all the averments that are provable as set out in her bill, with the inferences, deductions and conclusions therefrom, she would still not be entitled to relief.
The decree of the court below is affirmed at the cost of appellants.