113 Kan. 200 | Kan. | 1923
The opinion of the court was delivered by
This is a suit to enjoin defendant from erecting tanks for the storage of gasoline and kerosene on a certain lot in the city of Cherryvale upon the theory that the same would be a public nuisance. The plaintiff prevailed, and the defendant appeals, claiming there was error in the court below, particularly in rendering judgment for plaintiff.
Through Cherryvale the railroad runs north and south. Just west of the right of way is Depot street, fifty feet wide, and west of that is block 20, which is 300 by 310 feet, with a twenty-foot alley running through the center north and south. The east half of the block is divided into six lots. The south lot is vacant; the second one is vacant except for the railroad water tank; the third had a wooden fuel oil tank near the south line and twenty-four feet from the alley, and on this lot, north of the wooden oil tank and twenty-four feet from the alley, are the foundation walls for defendaiit’s tanks. The lot is otherwise vacant. The fourth lot belongs to the city and has a frame storage building on the northeast comer. The fifth has an ironclad building, used as a shop for the sale of oil, greases, etc., on the northeast corner, and on the sixth lot are two frame residences. On the west half of the block
Is the evidence, of which the above is a synopsis, sufficient to
In this case we may eliminate from our consideration the question of improper operation, for the tanks have not been constructed and the court cannot assume, for the purpose of granting an injunction, that they will be improperly operated. No complaint is made as to the plan or manner of erecting the tanks and the pipes leading thereto, and the evidence appears to show that such construction was in accordance with approved miethods, so that question is eliminated.
We are left with the question of whether or not' the place of the location, the proximity to other buildings, is such that the erection of the tanks at this particular place would be held to be a nuisance. The evidence relating to insurance has no force. Only one residence would have the insurance increased, and that only 10 per cent, which is not shown to be any greater increase than the erection of any other building at this place would cause. The fact that one resident of the block thought it would decrease the value of his property and lessen the enjoyable use thereof, and another would «“rather the tanks wouldn’t be there” are too inconsequential to be of force. (Harper v. Standard Oil Co., 78 Mo. App. 338.) This is not an exclusive residential section of the city. It is outside of the fire limits; the erection of the tanks is not in violation of any ordinance. We have examined all the authorities cited in support of the injunction and many others. We regard the evidence entirely inadequate to support the judgment.
In Julian v. Oil Co., 112 Kan. 671, decided by this court last month, being a suit by plaintiff owning residence property in a part of a city largely devoted to business purposes, to enjoin defendant from putting in large underground storage tanks for gasoline and kero
“The maintenance of a filling station in the location described herein cannot be regarded as a nuisance per se or a wrongful use of private property which a court m'ay enjoin.” (Syl. ¶ 3.)
The judgment of the court below will be reversed with directions to enter judgment for defendant.