Tyson v. Coder, 83 Pa. Super. 116

Tyson v. Coder

83 Pa. Super. 116 | Pa. Super. Ct. | 1924

Argued March 12, 1924. The principle on which the complainants rely has its foundation in the familiar rule that everyone must so use his property as not to injure another. It has been applied in many cases relating to the bringing of an offensive and injurious business into a populous neighborhood, and especially to a locality which may be regarded as residential as distinguished from a district devoted to manufacturing, or other business. The cases of Broder v. Saillard, L.R. 2, Ch. Div. 692, and Ball v. Ray, L.R. 8, Ch. App. 471, illustrate the attitude of the English courts on the subject and the same rule has been adopted in this country. It is sometimes difficult to determine whether the facts bring the case within the rule, but it may be considered an established principle that many kinds of business, useful and even necessary in a populous district and not in themselves nuisances, are so regarded in the light of the circumstances of the neighborhood in which it is proposed to establish them, and the rule is more readily applied where the business has not been established than where it has been conducted for a long period. An occupation which produces annoying noises or offensive odors may be carried on without legal impediment in some localities which would not be admitted into a residential district against the objection of persons living there. It has been accordingly held that a restriction in a deed for land forbidding *123 the erection thereon of "any tavern, drinking saloon, steam mill, tannery, slaughterhouse, skin-dressing establishment, glue, soap, candle or starch factory, or other building for offensive purpose or occupation" is applicable to a proposed public service garage to be used for the hire, storage and repair of automobiles, and furnishing of such supplies as they may need where the evidence shows that noises and offensive odors are an accompaniment of such an establishment: Hibberd v. Edwards, 235 Pa. 454. But the prohibition is not limited to cases of a restriction against nuisances in a deed. It has been enforced against the erection of a public garage in a residential neighborhood because of the character of the neighborhood and the nature of the business proposed to be conducted, the doctrine being that a neighborhood which has been preëmpted by the construction of residences and is adapted to that use is entitled to protection against the introduction of a business which would subject the residents to discomfort, inconvenience, risk and depreciation of property resulting from the prosecution of such business: Prendergast et al. v. Walls et al., 257 Pa. 547. The principle stated in the case cited was reaffirmed in Hohl et al. v. Modell, 264 Pa. 516, where it was said by Justice WALLING "equity may restrain as a nuisance the operation of a public service garage in an exclusively residence section, aside from any building restriction."

The same question was considered by the Supreme Court in an opinion filed April 14, 1924, William H. Slingluff et al. v. Daniel L. Tyson, where the law was restated to the same effect, the conclusion being that the operation of a public garage in a residential neighborhood should be restrained as a public nuisance. The business proposed to be carried on, with respect to which the latter decision was rendered, was much less extensive and less liable to become noxious than that in the case before us but it was held that the magnitude of the business did not affect the application of the equitable *124 principle invoked. It may be considered as a settled principle of equity therefore that the business of maintaining a public service garage in a municipal neighborhood exclusively residential will be restrained where such business is shown to be destructive of or prejudicial to the quiet and orderly condition of the neighborhood and the comfort and enjoyment of occupants of the residences in the vicinity because of noises, offensive odors, and the obstruction of the streets and footways incident to the business proposed to be carried on.

The learned trial judge found the facts in the case substantially as developed in Prendergast v. Walls, and on that finding the decree was entered. There was evidence supporting the decree and the testimony of witnesses that the locality where the defendant proposed to erect his building was substantially a resident district, the most exclusively so in the opinion of the trial judge to be found in the borough. There was evidence descriptive of the kind of business carried on in such establishments and to show by the nature of the business and the locality where it is proposed to be carried on that the comfort and quiet of the householder and of the public passing along the street would be much disturbed. The evidence shows that there was to be a machine shop, a repair shop, a storage for 150 cars or more provided for. The building proposed would be 50 feet in width and 200 feet in length, having two stories, both devoted to the garage business. There was foundation therefore for the findings of fact made by the court. That being so the case is ruled by Eppsteiner v. Ismar, 239 Pa. 393, and Cruzan v. Cruzan,243 Pa 165, each of which cases was a proceeding in equity, in both of which it was held that "the findings of fact by a judge, which involve the credibility of witnesses and the weight to be given their testimony, will be given the effect of a verdict of a jury and they will not be disturbed where there is testimony to support them." An effort was made by the complainant to show that if his garage were erected it would be conducted *125 in a less objectionable manner than one which he has been keeping in the same town; the new building making it practicable to avoid noise and odors to a large degree. But the court did not consider this evidence to be of weight sufficient to overcome the testimony and common knowledge relating to the kind of business necessarily carried on in a large garage devoted as well to car repairs, motor adjustments, etc., as to the storage of cars coming and going on a public highway. It was shown that Penn Street is only 29 feet in width between curbs, and the court was warranted in the inference that the volume of business transacted in the garage from that street would obstruct the thoroughfare and subject persons walking on the sidewalk to inconvenience and risk. It further appeared from the evidence of the defendant that if he succeeded in locating his garage other persons intended to engage in the same business in the same vicinity, thereby aggravating the objectionable conditions. The burden resting on the appellant to overcome the findings of fact by the court we are unable to conclude from our examination of the case that this burden has been discharged.

The decree is affirmed at the cost of the appellant.