165 Ga. 575 | Ga. | 1928
Lead Opinion
Is a filling-station a nuisance per se? The following businesses are not nuisances per se: Public livery-stables, Harrison v. Brooks, 20 Ga. 537, Hope v. Governor’s Horse Guard, 153 Ga. 633 (113 S. E. 189); guano depots, Huff v. Phillips, 50 Ga. 130; blacksmith-shops, Whitaker v. Hudson, 65 Ga. 43; private stables in residential sections of cities, Rounsaville v. Kohlheim, 68 Ga. 668; (45 Am. R. 505); county jails, Bacon v. Walker, 77 Ga. 336; municipal prisons, Long v. Elberton, 109 Ga. 28 (34 S. E. 333, 46 L. R. A. 428, 77 Am. St. R. 363); cemeteries, Harper v. Nashville, 136 Ga. 141 (70 S. E. 1102); magazines for the storage of explosives, Simpson v. DuPont Powder Co., 143 Ga. 465 (85 S. E. 344, L. R. A. 1915E, 430); cotton ginneries, Tate v. Mull, 147 Ga. 195 (93 S. E. 212, 3 A. L. R. 310), Pitner v.
But buildings may be so erected and businesses so conducted as to be nuisances, although they are not nuisances per se. This is true of the erection and operation of gasoline filling-stations. For instance, if this filling-station were so built as to discharge, when in operation, oil and greasy waters upon the near-by lot of the plaintiff; or if the erection of this filling-station and the driveway thereto were made in such a way as to constantly cause the headlights of automobiles entering such driveway to shine upon and into the plaintiff’s dwelling, so as to disturb or prevent the
We have seen that the erection and operation of gasoline filling-stations are not nuisances because they are erected in residential sections, 'and in close proximity to residences. In Smith v. Atlanla, supra, a party was erecting retail stores in front of residences on the opposite side of a narrow street, and adjacent to a residence upon the side of the street on which the stores were being erected. Many of the objections urged to. the erection of this gasoline filling-station were urged against the erection of these stores; and yet this court held that these stores were not nuisances per se. The erection of a filling-station; is just as lawful as the erection of retail stores. Besides, in the case cited, the stores were being erected in a district which had been zoned for residences alone. It can hardly be seriously urged that the deprivation of plaintiiPs view of the business section of his town by the erection of this structure will amount to a nuisance. The erection of buildings often destroys views. We have been able to find no case where such deprivation renders them nuisances. They often deprive ad
We deal next with the allegation that the operation of this filling-station will create so many noises and disturbances as will deprive petitioner and his family, including his small children, of sleep, and will thus endanger their health and destroy their peace and happiness by the destruction of the quietude of their home. Petitioner alleges that these noises will arise in two ways, one from the back-fire of automobile and truck engines, and the other from the beating and striking, with hammers and other irons, of the rims of automobile and truck wheels in removing and putting on tires. Petitioner denominates such noises as “loud, roaring noises.” In the first place, the noises arising from the back-fire of automobile and truck engines will not arise from the operation of this filling-station. They spring from the operation of automobiles and
Again, petitioner complains that the operation of automobiles to and from this filling-station will endanger the lives of his children. This is a danger arising from the operation of automobiles, and not from the operation of this filling-station. Again, petitioner alleges that there is danger of explosions arising from the transfer of gasoline from trucks to tanks and from tanks into automobiles and trucks, and that such explosions will endanger the lives of himself and family. Plaintiff’s apprehension of danger from this source is too remote and contingent to authorize us to declare this structure a nuisance. In order to justify us in declaring such filling-station a nuisance upon this ground, the alleged consequences must not be “merely possible, but to a reasonable degree certain.” Civil Code (1910), § 4459. Again, “The inconvenience complained of must not be fanciful, or such as would affect only one of fastidious taste, but it must be such as would affect an ordinary reasonable man.” Civil Code (1910), § 4457. Mere apprehension of inconveniences arising from a filling-station in course of construction, the same being for a lawful business use, is not sufficient to authorize an injunction. Richmond Cotton Oil Co. v. Castellaw, 134 Ga. 472 (67 S. E. 1126). Before we would be justified in declaring this filling-station a nuisance, the effect of its construction and operation must be such as to sensibly diminish the comfortable enjoyment by petitioner of his residence, either by actual, tangible injury to the property itself, or by the promotion of such physical discomfort, as detracts sensibly from the ordinary enjoyment of life. Holman v. Athens Empire Laundry Co., supra. From an inspection of the record in Morrow v. Atlanta, supra, it would appear that the inconveniences complained of from the operation of the garage involved in that case were much more serious than the inconveniences complained of in this case; and we held that the facts alleged did not constitute a nuisance which should be suppressed. We feel sure that the dire consequences which plaintiff apprehends will not arise from the erection and operation of this filling-station. We feel sure that the sleep of petitioner and his family will not be seriously disturbed from the noises incident to and usual in the operation of filling-stations, and that their health will not thereby be undermined.
It follows necessarily that the court below erred in granting the interlocutory injunction.
Judgment reversed.
Concurrence Opinion
concurring specially. We concur in the judgment, but do not wish to be committed to all that is said in the opinion by way of argument; for example, that in such cases gasoline filling-stations stand upon the same footing as retail- stores. We deem it best to approach each case on the facts and circumstances of that particular case, unembarrassed by comparisons which are not necessary.