185 A. 316 | Pa. | 1936
Argued April 20, 1936.
When this litigation came before the court in White v. OldYork Road Club,
Old York Road, adjoining the land on which the gas station is to be erected, is a main artery of travel. It is lined with double car tracks and heavily traveled by automobiles and trucks. Appellee High's dwelling is over *149 200 feet north of the proposed station, being separated from it by an intersecting road and a large lawn planted with shade trees and hedges, which obscure it to a large extent from view. The solid business section of Jenkin-town commences at a point 467 feet north of the gas station and is less than 300 feet from High's property. It appeared from the testimony that in the past there have been maintained in the immediate vicinity a honey business, an automobile repair shop and dog kennels, which have ceased to operate. In one vacant lot there is a billboard containing motion picture advertisements. By the township zoning ordinance the proposed station is in a district wherein certain businesses may be operated if a permit is secured. A permit was granted to operate the proposed station after a hearing before the proper board.
At the rehearing it was brought out that several important changes have taken place, which indicate that there is a definite business trend in the direction of High's property. There is little or no dispute as to these changes, and the sole question is whether, under the circumstances, the order of the court below in continuing the injunction against the operation of the proposed filling station without modification is so severe as to constitute error.
In reaching its conclusion the court below failed to consider many material factors which should enter into the consideration of a case where the aid of equity is invoked to suppress the operation of a lawful business. It totally disregarded the fact that the dwelling of the sole complainant, High, is more than 200 feet distant from the proposed gas station and separated from it by a wide road and large lawn planted with trees and surrounded by a hedge of considerable height. Cognizance was not taken of the fact that the neighborhood is in a transitory stage and that subsequent to the original petition several commercial enterprises had been commenced in it. Nor was due consideration given to the fact that the *150 neighborhood borders on a main highway and, as a result, is subjected more or less to discomforting and disagreeable noises caused by passing automobiles and trucks, the disturbances resulting from their constant stopping and starting at this intersection, and their other usual incidents. Furthermore no significance whatsoever was given to abundant testimony that the chief value of the land adjoining Old York Road in this section lies in its use for commercial purposes.
The chancellor took the attitude that the controlling factor was the character of the use of the dwellings in the neighborhood, and that nothing else mattered. That the case was disposed of on this basis is clear. The court below states, "One driving up the heavily-traveled York Road by the locus inquo, and noting the proximity of the business district of the thriving Borough of Jenkin-town, gets as a first impression that here is a location in which a service station should not be restrained." He concludes that it is only by closely studying the situation and the history of the immediate neighborhood that it becomes clear that it would be a nuisance per se. It is apparent that the finding was based wholly on a misconception of the scope of inquiry in proceedings of this nature and the result was reached solely on the character of use. Other factors had a direct and material bearing on the question whether the proposed operation of a filling station would constitute an unreasonable infringement upon the property rights of the sole complainant. Long established equitable principles should have guided the court in determining the matter before it. We need not repeat what has been so often stated concerning nuisance per se as related to gasoline stations, the burden of proof and the quantity of evidence necessary to sustain such a charge.* *151
This court has never held that the classification of a particular neighborhood based on the character of the use of the property is the sole and decisive test of the right to operate a given business within its confines. In cases of this type locality is necessarily an essential factor of primary importance: Nesbit v. Riesenman,
Where an attempt is made to enjoin an anticipated nuisance, the threatened injury must be certain and not merely probable. "One thing is quite certain, equity will not interfere unless its right to do so is free from doubt [authority]. The wrong or injury resulting from the pursuit of a trade or business must be plainly manifest or certain to follow [authorities]. If the injury be doubtful, eventual or contingent, equity will not grant relief [authority]. The fact that it might possibly work injury is not sufficient": Penna. Co. v. Sun Co.,
Another matter was lost sight of which should have been considered. The zoning ordinance and the issuance of a permit to operate the proposed filling station sanctioned this use. Such ordinances and the action of the authorities thereunder, while not controlling in cases involving nuisances, must be given due weight in determining the questions involved and, in doubtful cases, should have the greatest weight. Their chief significance lies in the fact that they are in the nature of expressions of municipal thought and opinion, from those who may be classed as neighbors: Walker v. Delaware Trust Co.,
In these cases equity cannot act with too much caution. Its strong arm must not be allowed to fall with destructive effect upon a lawful and necessary business, unless it is plainly manifest and certain beyond doubt that the pursuit of the trade would result in substantial injury. In this industrial age personal comfort, pleasure and preferences must be sacrificed to some extent in the interest of commercial necessities. Equity must not outlaw a given business in a particular locality *153 unless it is clearly apparent that the discomfort will be increased beyond that already suffered, and that positive injury to valuable property rights will ensue: Penna. Co. v.Sun Co., supra, and authorities cited therein.
Under the circumstances the restraint against the operation of this gasoline filling station must be modified. If in the future it is operated in an unreasonable and objectionable manner, and becomes the source of offensive and obnoxious features not ordinarily incidental to the conduct of such stations, thereby creating a nuisance in fact, appellee will be given full and adequate relief.
The decree is modified to permit the operation of a gasoline filling station on appellant's property so as not to become a nuisance in fact; the court below to retain the bill for further action in the event that its operation becomes such nuisance.
