Opinion
Opinion filed October 1, 1940.
1. Demurrer. — 2. Nuisance per se. — 3. Conclusions in Allegations. — 4. Facts Necessary in Allegations. — 5. Filling Station as Nuisance. — 6. Individual Injury not Public Injury. — 7. Allegation of Obstruction. — 8. Allegations of Insecurity. — 9. Smoke from Filling Station. — 10. Electric Interference from Filling Station. — 11. Filling Station as Nuisance per se. — 12. Declaratory Judgment. — 13. Waiver of Claimed Error. — 14. Declaratory Relief as Bar to Legal Relief.
1. Demurrers of a plaintiff to defendants' answers to bill in chancery reach back through the record and attach to the first pleading bad in substance.
2. A gasoline filling station though erected in a residential district does not seem to be always a nuisance per se.
3. Allegations in a bill of complaint that a proposed gasoline filling station will be a nuisance constitute a mere conclusion of the pleader.
4. Allegations in a bill of complaint must set forth enough of the facts relied upon so that the court can see that the results or consequences which the bill claims will occur are not based on mere fear or anticipation but are reasonably to be expected.
5. A bill of complaint alleging that a filling station which the defendants have contracted to build will be a nuisance because it will violate town ordinances defining a public nuisance and that its operation will result in noise, odors, dirt, dust and smoke, annoyance from automobile headlights, interference with radio reception, obstruction of adjacent sidewalks and highways, and enhancement of fire risk by operation of filling station and storage of over 100 gallons of gasoline is defective as containing merely the conclusions of the pleader based on mere fear or anticipation and not facts showing that the results or consequences from which relief is sought are reasonably to be expected.
6. Allegations as to disturbance and discomfort of the plaintiff in the enjoyment of his home in an exclusive residential district do not constitute an allegation that such acts "shall annoy, injure, or endanger the safety, health, comfort, or repose of any considerable number of persons."
7. An allegation that a proposed filling station across the street from petitioner's premises will interfere, obstruct or tend to obstruct and render dangerous the sidewalk and highway adjacent to his premises is not sufficient to show that such result will reasonably follow and is merely a conclusion of the pleader.
8. Allegation as to damage and depreciation to petitioner's property in an exclusive residential district to be caused by a gasoline filling station proposed to be erected across a street are not allegations that it will in any way render any number of persons insecure in life or in use of property.
9. It is a matter of common experience that the usual operation of a gasoline filling station does not necessarily produce dense smoke.
10. An allegation that the use of electric pumps, bells and air compressors in connection with a proposed gasoline filling station will cause excessive noise and will interfere with radio reception constitutes a mere conclusion of the pleader.
11. Allegations that a proposed gasoline filling station will damage petitioner's property, disturb his home, prevent the peaceful and rightful use of his property, obstruct the highway and sidewalk adjacent to his premises and enhance the danger of fire to his property are not sufficient to adjudge that such proposed station would be a nuisance per se under ordinances declaring as a public nuisance use of property which "shall annoy, injure, or endanger the safety, health, comfort, or repose of any considerable number of persons", "shall unlawfully interfere with, obstruct, or tend to obstruct, or render dangerous for passage any public park, common, street, or highway," "shall in any way render any number of persons insecure in life or in use of property," and that "no person shall allow dense smoke, noxious fumes, gas, soot, or cinders in such quantities as to render the occupation of property uncomfortable to a person of ordinary sensibilities," and that "no person shall maintain or operate any electric device or apparatus which shall cause unreasonable interference with radio receivers, within the town limits."
12. An action for a declaratory judgment under the provisions of the Uniform Declaratory Judgment Act (Chap. 68 of the Public Laws of Vermont, 1933) does not seem to be the proper method of procedure for cases involving the subject matter of a nuisance.
13. Any claim of error is waived in respect to points not briefed.
14. The unsuccessful prosecution of proceedings under the Uniform Declaratory Judgment Act seeking an adjudication as to a nuisance per se does not bar an action for legal damage suffered by the operation and conduct of the alleged nuisance.
PETITION FOR DECLARATORY JUDGMENT under Chapter 68 of the Public Laws. The defendants each filed an answer to the amended petition and to each answer the petitioner demurred. Heard on demurrer by Windham County Court of Chancery, Adams, Chancellor, at September Term, 1938. Demurrers overruled. Petitioner appealed and also took the case to the Supreme Court on a bill of exceptions. The opinion states the case. Affirmed.
Edward J. Shea and Osmer C. Fitts for petitioner.
Barber Barber for defendant Hatch.
H.G. Barber for defendant Sinclair Refining Co.
Present: MOULTON, C.J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.
This is an action for a declaratory judgment under the provisions of the Uniform Declaratory Judgments Act, chapter 68 of the Public Laws. The petition sets forth in substance that the plaintiff is the owner of a home located in an exclusive residential district in Brattleboro. That the defendant Hatch is the owner of premises directly opposite those of the plaintiff and that this defendant has entered into a contract with the defendant Sinclair Refining Company to erect a gasoline filling and service station on his premises and has commenced building the same under a building permit obtained from the town of Brattleboro. It is also alleged that prior to the bringing of the within petition the plaintiff petitioned the selectmen of Brattleboro to cancel the permit on the ground that the filling station when erected would constitute a public nuisance which petition was denied.
It is alleged that certain ordinances are in effect in the town of Brattleboro which declare a public nuisance to be a thing, act, failure to act, occupation or use of property which: (1) "Shall annoy, injure, or endanger the safety, health, comfort, or repose of any considerable number of persons; * * * (3) Shall unlawfully interfere with, obstruct, or tend to obstruct, or render dangerous for passage any public park, common, street or highway; (4) Shall in any way render any number of persons insecure in life or in use of property". It is also alleged that these ordinances for the abatement of nuisances provide in sec. 9, that: "No person shall allow dense smoke, noxious fumes, gas, soot, or cinders in such quantities as to render the occupation of property uncomfortable to a person of ordinary sensibilities". Under these same ordinances section 15 is set forth as providing that: "No person shall maintain or operate any electrical device or apparatus which shall cause unreasonable interference with radio receivers, within the town limits", etc.
Certain other ordinances of the town are set forth which in effect prohibit the keeping of gasoline and other named inflammable fluids in excess of 100 gallons in a thickly settled residential part of the town or in other parts of the town without a permit from the selectmen. It is then alleged that it is planned by the defendants to store gasoline and some of the other named fluids in excess of 100 gallons and in violation of the ordinances relating to the same.
There are allegations that the operation of the proposed filling station will result in noise, odors tending to depreciate the value of the property of the plaintiff and disturb the peaceful enjoyment of his home and will create an immense amount of dirt, dust and smoke which will penetrate into the house of the petitioner and render its occupancy uncomfortable and that the headlights of motor vehicles entering and leaving the proposed filling station will shine into the windows of petitioner's home causing great annoyance and prevent the peaceful and rightful use of his property. It is also alleged that the use of electric pumps, bells and air compressors will cause excessive noise and will interfere with radio reception and that the proposed station will interfere, obstruct or tend to obstruct and render dangerous to passage the street, sidewalk and highway adjacent to petitioner's premises.
There is also an allegation to the effect that the maintenance of the station and the storing of gasoline in excess of 100 gallons will greatly enhance the risk of fire to the petitioner's house and thereby increase the insurance as well as the danger of loss to the petitioner by reason thereof.
There are other allegations in the petition similar to the ones heretofore cited which need not be mentioned.
The plaintiff asked judgment that the Court determine:
A. That under and by virtue of the nuisance ordinances the erection of the proposed filling station in the neighborhood in question is, and will be, a nuisance per se.
B. Whether or not the defendants have a valid permit from the town of Brattleboro for the erection of said building.
C. Whether or not the ordinances relating to the storage of inflammable fluids is enforceable against the defendants.
Defendant Hatch filed an answer setting forth that the station has been completed and is now in operation so that the questions raised by the complaint have become moot; that the ordinances set forth are penal in nature; a denial of substantially all of the allegations as to the resulting consequences from the operation of the station and other pleas in bar not necessary to mention.
Defendant Sinclair Refining Company by its answer declared that the questions presented had become moot. The plaintiff demurred to each answer.
Hearing was had before the chancellor upon the pleadings who entered a decree overruling the several demurrers, adjudging the pleas of each defendant sufficient and dismissing the bill. The case is here on appeal and bill of exceptions of the plaintiff.
The demurrers of the plaintiff reach back through the record and attach to the first pleading bad in substance. Redington v. Burnham, 106 Vt. 114, 169 A. 908, and cases cited therein.
The first question to be determined is whether the allegations in the complaint show that the proposed filling station would, when erected and put in operation, constitute a public nuisance per se as being in violation of the nuisance ordinances above referred to.
It might be well to note at the outset and as an aid in determining this question that by the great weight of authority it is held that a gasoline filling station, though erected in a residential district, is not a nuisance per se. 24 Am. Jur. 708, sec. 2; Anno., 124 A.L.R. 383.
In the complaint there are various allegations that the proposed station will be a nuisance but this is a mere conclusion of the pleader. Village of Bennington v. Hawks, 100 Vt. 37, 39, 134 A. 638. The facts must be so far set forth that the court can see that the claimed results or consequences are not based on mere fear or anticipation but are reasonably to be expected. Village of Bennington v. Hawks, supra; Anno. 124 A.L.R., supra, at page 385; 20 R.C.L. 478, sec. 91. An examination of the complaint shows that it is defective in this respect.
As far as sec. (1) is concerned there is no allegation that the proposed station will annoy etc. anyone except the plaintiff.
The statement in regard to obstructing and rendering dangerous the street and highway under sec. (3) is a mere conclusion of the pleader, there being no facts set forth which in any way showed the court that such a result would reasonably follow, and under the Hawks case, supra, this was defective pleading.
There is no allegation in the complaint bringing the case within sec. (4).
Under sec. (9) there is an allegation to the effect that the operation of the proposed station will produce dense smoke. There is no allegation that this station will be operated in a manner other than others of like nature and it is not a matter of common experience that dense smoke necessarily accompanies such operation. Indeed the contrary is the fact of the matter.
Under sec. (15) there is an allegation that the use of certain apparatus will interfere with radio reception. This again is a mere conclusion of the pleader.
From what we have said it is apparent that the court was correct in refusing to adjudge, under the allegations in the complaint, that the proposed station would be a nuisance per se under the ordinances in question.
The plaintiff in his briefs presents arguments and cites cases on two points only, viz: that the question of whether the station when erected would be a nuisance is not moot and that a petition for a declaratory judgment is a proper remedy. He states in his brief that the sole issue in the case is the legality of the station as a nuisance. In view of what we have said it is unnecessary for us to pass on these questions. It might be well to state, however, that it has been held that this method of procedure is not the proper one for cases involving the subject matter of a nuisance. Cuneo Eastern Press, Inc. v. Astrowsky, 231 App. Div. 861, 246 N.Y.S. 510; Ladner v. Segel, 294 Pa. 368, 144 A. 274; Borchard, Declaratory Judgments, 115.
The plaintiff does not attempt in any manner to point out in his briefs any reasons why the court erred in refusing to pass judgment on questions B and C and none occur to us. These points not being briefed any claim of error in respect to the same is waived.
We cannot see that any good purpose would be served by remanding this case with leave to amend. If the operation and conduct of the station has been such as to cause legal damage to the plaintiff he may take such action as he may be advised.
Decree affirmed.