77 Ind. App. 687 | Ind. Ct. App. | 1922
Complaint by appellants in three paragraphs to enjoin the use by appellee of either or both of two metal tanks, each of 16,000 gallon capacity, near appellants’ residences, by placing gasoline and other dangerous liquids therein.
Th^ first paragraph avers that appellee is the owner and in possession of certain real estate, in the city of Franklin, Johnson county, Indiana, bounded on the south by Jefferson street, and on the west by Walnut street, on the north by an alley, and on the east by the F. F. and M. Railway, and is located at the edge of the business district of said city and at the beginning of the good residential section ^hereof; that appellants are severally the owners of their respective residences and dwelling houses in the immediate neighborhood, said buildings ranging in value from $5,000 to $10,000, each of which will be injuriously affected by the location and use of the tanks as hereinafter set forth. That appellee has located upon its said real estate two immense metal tanks, of the capacity of 16,000 gallons each, and together of the total capacity of 32,000 gallons, and is threatening to and will fill them with gasoline or other high explosive substances unless restrained. That the use of said tanks for the purpose of storing gasoline or other high explosive, because of their highly explosive character will be a menace to appellants’ respective selves and families, greatly lessen the value of their said dwelling houses and will cause them to live in constant fear and apprehension of death from explosion, so interfering with the comfortable enjoyment of their respective lives or properties, thereby causing them an irreparable injury.
The second paragraph contains the same averments as the first, but more definitely describes the situation as follows: Said tanks are located within seventy feet of the main line of the Big Four Railway, and immedi
The third paragraph contains substantially the same
The principles above announced are considered in the case of Wittemore v. Baxter Laundry Co. (1914), 181 Mich. 564, 148 N. W. 437, 52 L. R. A. (N. S.) 930, Ann. Cas. 1916C 818, where the court says: “We may grant that the storage of gasoline on premises adjacent to or adjoining the premises of another is not a private nui
We have examined the cases cited by appellee-and we note that generally the primary question which they decide is that public garages and filling stations in residential portions of cities do not constitute nuisances that may be enjoined. Each of the decisions is, of course, based on the peculiar circumstances therein involved. We are not, generally speaking, averse to this rule upon the condition that such public necessities are installed and conducted with due regard for the rights and safety of those in the locality likely to be affected thereby. We are not out of harmony with Hanes v. Carolina Cadillac Co. (1918), 176 N. C. 350, 97 N. E. 162, from which appellee quotes, and which is to the effect that automobiles are of such general use that they have become a part of the daily life of our people in
In the case of McGuffey v. Pierce-Fordyce Oil Assn. (1919), (Tex. Civ. App.) 211 S. W. 335, the suit was for damages for loss by fire of certain houses and their contents. The complaint charged the maintenance of a public and private nuisance by virtue of its warehouse, containing oil and gasoline, being in a thickly built up portion of the city in-close proximity to many wooden buildings. There were 12,000 gallons of kerosene in two of said tanks and 300 gallons of gasoline in a third
The judgment is reversed with instruction to overrule the demurrer to each paragraph of complaint, and for further proceedings in harmony with this opinion.