Adams v. Gorrell , 28 Ohio App. 55 ( 1927 )

This is a suit in injunction and comes to us on appeal from the court of common pleas of Hancock county, and is submitted on an agreed statement of facts.

The defendant in the court below was permanently enjoined from using a certain tank "for the storage of gasoline in quantities in excess of 2,000 gallons without the written consent of plaintiff and other property owners whose property line is nearer to said tank than 150 feet."

The defendant appealed the cause to this court.

From the agreed statement of facts, we glean that plaintiff is the owner of a house and lot in the city of Findlay, Ohio; that contiguous to said property is a piece of land owned by a railroad company, upon and over which it operates locomotives and cars; that on this piece of land within a distance of not more than 40 feet from plaintiff's lot line, and within a distance of not more than 80 feet from his house, defendant purposes to build, and has actually begun the construction of, a certain open-air bulk gasoline tank or station; that said tank at its top will be about 15 feet above the surface of the ground; that said tank will be placed upon iron frames, which will rest on concrete abutments, and will have a capacity of approximately 15,000 gallons; and that said tank will be located, constructed, and disked in conformity with the rules promulgated by the state fire marshal; that defendant intends to, and will, store in said tank, approximately 15,000 gallons of gasoline, and will vend same at wholesale; that after defendant had begun the construction of said tank, and after he had expended several thousand dollars on same, the council of the city of Findlay passed an emergency ordinance, which makes it unlawful for any person to store or keep in storage or permit to be stored or kept within the corporate limits of the municipality, in any open-air elevated tanks, barrels, or other receptacles, gasoline in quantities of 2,000 gallons or more within 150 feet of any property line, without first obtaining the written consent of the owner of said property, and that the penalty for a violation of said ordinance is a fine of not more than $500; and that plaintiff has not consented, in writing or otherwise, to defendant's storing gasoline in said tank, that he and his family reside in said house, and that he fears that the said tank, when filled or partly filled with gasoline, will endanger his family, will increase the rate of the insurance on his house, and render his life unsafe and uncomfortable.

There are other facts set forth in the agreed statement of facts to which counsel for both plaintiff and defendant have called our attention, but in our opinion they are not controlling, and therefore we will neither set forth nor comment on them.

The questions are:

First, whether under the situation the gasoline tank or station will be a nuisance, either at law or in fact.

Second, whether the city ordinance is valid.

Unquestionably, one must so use and occupy his property as to not injure the rights of another. If one so uses his property as to injure the rights of another, he is liable in damages to the person so wronged, and, if the damages are not adequate, and the injuries cannot be fully compensated in money, a court of equity will intervene by way of injunction and grant appropriate relief. But, when no right has been invaded, although one may have damaged another, no liability has been incurred and no redress, either in law or equity, is obtainable. Letts v. Kessler, 54 Ohio St. 73, 85, 42 N.E. 765, 40 L.R.A., 177.

In the instant case, defendant, if permitted to so do, intends, in accordance with the rules issued by the state fire marshal, to properly erect, maintain, and operate an open-air, elevated, wholesale gasoline station, with a capacity of 15,000 gallons, in close proximity to moving locomotives, and within 80 feet of the house in which plaintiff and his family reside. Will defendant by erecting, maintaining, and operating such a station create, as to plaintiff and others similarly situated, a nuisance per se? We do not think so.

The storing of gasoline in tanks or stations and vending it, either at retail or wholesale, is a lawful and respectable business. A filling station, properly installed and properly operated, is not a nuisance per se. O'Day v. Shouvlin, 104 Ohio St. 519, 136 N.E. 289, 25 A.L.R., 980; Powell v. Craig,113 Ohio St. 245, 148 N.E. 607.

Whether defendant, after its installation, will properly operate this filling station, we do not know. But, if he does not, and the rights of another by reason thereof are invaded, the courts of the state will then be open to him.

In the case at bar there is no proof that plaintiff will be hurt, inconvenienced, annoyed, or damaged by reason of the maintenance and operation of said tank. There is, however, proof of a fear on his part that said tank when filled or partly filled will endanger his family, increase the fire insurance on his house, and render his life unsafe and uncomfortable. Courts, either of law or of equity, however, will not give cognizance to the apprehended fears of mankind in reference to what may arise out of the conduct of a purely lawful enterprise. Culver v. Ragan, 15 C.C., 228, 8 C.D., 125; State ex rel. Woolery v. Brenner, 6 Ohio App. 209,211; Cook v. City of Fall River, 239 Mass. 90,131 N.E. 346, 18 A.L.R., 119.

We therefore hold that under the present situation said gasoline tank, as to plaintiff and others similarly situated, is neither a nuisance per se nor in fact.

In respect to the validity of the city ordinance, we are bound by a comparatively recent pronouncement of our Supreme Court in the case of City of Cincinnati v. Cook, 107 Ohio St. 223,140 N.E. 655. The syllabus of this case reads as follows:

"A city ordinance makes it unlawful for any driver or operator of any vehicle to permit his or her vehicle to stand in front of a certain railroad passenger station therein named, between points designated, ``unless the permission to stand has been granted by the person having the supervision over said passenger station.'

"Held: Such ordinance is invalid because of its attempted delegation of legislative power, and for the reason that it is violative of the equal protection of the law guaranties of the state and federal Constitutions."

The similarity of the city ordinance here in question to the one passed upon by our Supreme Court is patent. Both attempt to delegate legislative power. Obviously, since the Cincinnati ordinance is invalid, the one at bar likewise is invalid.

Entertaining these views, it follows that the petition and supplemental petition should be dismissed.

Decree accordingly.

CROW and HUGHES, JJ., concur.