Opinion
6 Div. 628.
May 29, 1930. Rehearing Denied October 23, 1930.
Appeal from Circuit Court, Tuscaloosa County; Henry B. Foster, Judge.
Harwood McQueen, of Tuscaloosa, for appellants.
A private nuisance, injuring person or property or both, may be enjoined. Code 1923, §§ 7271, 9276. Municipal authorities have power to prevent injury and annoyance from anything dangerous or offensive or unwholesome, and to cause all nuisances to be abated. Code 1923, § 2034. A filling station should not, over objection of adjacent and neighboring property owners, be erected in a section previously devoted to desirable residential purposes. National Ref. Co. v. Batte, 125 Miss. 819, 100 So. 388, 35 A.L.R. 91; King v. Vicksburg R. L. Co., 88 Miss. 456, 42 So. 204, 6 L.R.A. (N.S.) 1036, 117 Am. St. Rep. 749; Hundley v. Harrison, 123 Ala. 292, 26 So. 294; Harris v. Randolph Lumber Co., 175 Ala. 157, 57 So. 453; First Ave. C. L. Co. v. Johnson, 171 Ala. 470, 54 So. 598, 32 L.R.A. (N.S.) 522; Bloch v. McCown, 219 Ala. 656, 123 So. 213; Higgins v. Bloch, 213 Ala. 209, 104 So. 429; Gillette v. Tyson, 219 Ala. 511, 122 So. 830; Mitchell v. Guaranty Corp., 283 Pa. 361, 129 A. 115; Krocker v. Westmoreland Pl. Co., 274 Pa. 143, 117 A. 669, 23 A.L.R. 1404; Phillips v. Donaldson, 269 Pa. 244, 112 A. 236; McPherson v. First Presbyterian Church, 120 Okl. 40, 248 P. 561, 51 A.L.R. 1215; Prendergast v. Walls, 257 Pa. 547, 101 A. 826. Depreciation of property in the neighborhood, and danger to pedestrians, especially children attending school, are elements which would tend to make the filling station a nuisance per accidens. Slingluff v. Tyson, 280 Pa. 206, 124 A. 420; Mitchell v. Guaranty Corp., supra; Gillette v. Tyson, supra. The mere fact that a small grocery, with a single gasoline pump, is located there, does not convert a neighborhood from its residential character. Mitchell v. Guaranty Corp., supra; Slingluff v. Tyson, supra; Phillips v. Donaldson, supra.
Livingston Livingston, of Tuscaloosa, for appellee.
A filling station is not a nuisance per se, even in a residential section. Gillette v. Tyson, 219 Ala. 511, 122 So. 830; Bloch v. McCown, 219 Ala. 656, 123 So. 213; Nevins v. McGavock, 214 Ala. 93, 106 So. 597. The court's finding on the facts has the same effect as the verdict of a jury, and should not be disturbed unless clearly wrong after allowing all reasonable presumptions. Benton Mer. Co. v. Owensboro Wagon Co., 207 Ala. 49, 91 So. 784; Curb v. Stewart Co., 215 Ala. 511, 110 So. 804; Pizitz D. G. Co. v. House of Van Praag, 219 Ala. 183, 121 So. 701; 38 C.J. 948. Bare possibility of injury will not warrant interference by the court against a threatened nuisance; inconvenience caused must not be fanciful or such as would affect only persons of fastidious taste. Nevins v. McGavock, supra; Rouse Smith v. Martin, 75 Ala. 510, 51 Am.Rep. 463; Sherman v. Livingston (Sup.) 128 N.Y. S. 581; Higgins v. Bloch, supra; Code 1923, § 9271. The mere fact of diminution of value of surrounding property, without more, is unavailing as a defense against erection and operation of a filling station. Nevins v. McGavock, supra. Testimony respecting value, being opinion evidence, is not binding on the court trying the issue without a jury. State v. Brintle, 207 Ala. 500, 93 So. 429; 17 Cyc. 262. To warrant interference against the operation of a lawful business on the ground that it will constitute a nuisance, it must be shown that the annoyance, injury, or danger will be caused by the acts of operating the proposed business, and not from other sources over which the operator has no control. 46 C.J. 655; Mitchell v. Flynn Dairy Co., 172 Iowa, 582, 151 N.W. 434; Id., 172 Iowa, 582, 154 N.W. 878; Standard Oil Co. v. Kahn, 165 Ga. 575, 141 S.E. 643. The burden of proof is on respondents to satisfy the court that a nuisance will arise from operation of the filling station. 46 C.J. 787; Higgins v. Bloch, supra. There is a wide difference between a filling station and a public garage. 2 Words and Phrases, Second Series, 700; 3 Words and Phrases, Third Series, 862.
The question for decision is: Under the circumstances, conditions, and surroundings, will the proposed filling station constitute a nuisance per accidens?
The action of the building inspector in refusing the permit of petitioner was sustained by the Board of Appeals. And petition for mandamus was filed in the circuit court to compel said inspector to issue the building permit in question.
The trial thereof was upon oral evidence before the court rendering judgment overruling denial of the desired permit.
The decisions as to filling stations in residential sections are to the effect that they are not nuisances per se. Laughlin, Wood Co. v. Cooney (Ala. Sup.) 126 So. 864; Nevins v. McGavock, 214 Ala. 93, 106 So. 597; Bloch v. McCown et al., 219 Ala. 656, 123 So. 213; Gillette v. Tyson, 219 Ala. 511, 122 So. 830; Higgins v. Bloch, 213 Ala. 209, 104 So. 429; Id., 216 Ala. 153, 112 So. 739; First Ave. Coal Lumber Co. v. Johnson, 171 Ala. 470, 54 So. 598, 32 L.R.A. (N.S.) 522. That the finding on the facts from the oral testimony has the same effect as a verdict of a jury, and will not be disturbed unless clearly wrong, after allowing the usual and reasonable presumptions to support the same, unless the preponderance of the evidence is against such finding and judgment and the same is clearly wrong and unjust, is the holding in Benton Mercantile Co. v. Owensboro Wagon Co., 207 Ala. 49, 91 So. 784; Curb v. Stewart, Adams Co., 215 Ala. 511, 110 So. 804; Pizitz Dry Goods Co. v. House of Ban Praag, 219 Ala. 183, 186, 121 So. 701.
It is further declared by this court in such a case that a bare possibility of injury will not warrant interference against an alleged threatened nuisance. Nevins v. McGavock; Higgins v. Bloch, supra; Rouse Smith v. Martin Flowers, 75 Ala. 510, 51 Am. Rep. 463; section 9271, Code, and authorities cited.
The agreed statement of facts contains, among other things, the following:
"That the pleadings in said cause shall be in short by consent, but that the answer filed by the respondents shall be used and looked to, as to the facts which are admitted by the respondents; that the only question for the determination of the court, in addition to the facts admitted in the answer of the Respondents, is, will the proposed filling station constitute a nuisance per accidens, in the locality in which the petition seeks to locate the same, under all the circumstances, conditions, and surroundings, and that this fact shall be determined by the court from the testimony of witnesses examined orally before the court."
The difficulty of formulation of rules accurately defining acts or "facts which would constitute a nuisance under any and all circumstances" was declared in English v. Progress Electric Light Motor Co., 95 Ala. 259, 10 So. 134; Dixie Ice Cream Co. v. Blackwell, 217 Ala. 330, 116 So. 348, 58 A.L.R. 1223; Rouse Smith v. Martin Flowers, supra.
The burden of proof is upon the respondents; it is agreed that the proposed filling station is not a nuisance per se. Higgins v. Bloch, 216 Ala. 153, 112 So. 739. And if there is reasonable doubt as to the probable effect of an alleged nuisance, either on the proof or the construction of the facts averred, there will be no interference until the matter is tested by the actual use and resultant facts. Rouse Smith v. Martin Flowers, 75 Ala. 511, 51 Am. Rep. 463.
The rules as to permitting evidence in such a case were recently well stated in Gillette v. Tyson, 219 Ala. 511, 122 So. 830.
When the evidence is carefully considered, it is shown that the proposed filling station is not located in a strictly residential section. That the location is, and so found by the trial court, diagonally across the street from a grocery store and filling station consisting of one gasoline pump; that gasoline and motor oils are sold at this filling station, and have been sold for some time past; that for this business the respondents did duly issue a permit for its operation, and have in the past sanctioned its operation; that there is now located within (or about) three blocks of the proposed filling station an ice factory in full operation; that the site on which the said ice factory is located was sold to the ice company through the Harrison Realty Company, of which said firm J. I. Harrison is a member; that Mr. Harrison is a vigorous objector to the building of the proposed filling station; that there is located within three and one-half blocks of said proposed filling station site, a machine shop, and it is in full operation and has been for a long period of time; that the Warrior Southern Railroad has and maintains a railroad track, over which trains are run, within or about three blocks of the proposed filling station site; that there is a large tract of vacant and unimproved property lying along and adjacent to said railroad company's track, and along and adjacent to Queen City avenue; that this unimproved property extends up to within about a block and a half of the proposed filling station site; and that this property is desirable for industrial purposes.
The court was justified in holding that the construction and operation of the proposed filling station on this proposed site was in a semiresidential section, and that the judgment of the court in this respect is supported by the evidence. The respondents in this cause rely very largely on two cases, Bloch v. McCown, 219 Ala. 656, 123 So. 213, and National Refining Co. v. Batte, 100 So. 388, 35 A.L.R. 91, the latter being a Mississippi case ( 135 Miss. 819). It may be insisted that these cases do not support appellants' insistence for reversal of this cause. The case of National Refining Co. v. Batte, as well as Bloch v. McCown, turns upon a question of pleading. The appellee observes of these cases that complainant cannot be prevented from alleging facts in his complaint, but many times circumstances and the lack of evidence prevent proof of the matters alleged therein; and so as to Gillette v. Tyson, 219 Ala. 511, 122 So. 830. Such, of course, is the fact as to pleading. The locus in quo of the Bloch Case (in this jurisdiction) was at or about the same place where injunction was granted in Higgins v. Bloch, 216 Ala. 153, 112 So. 739. The case of Gillette v. Tyson, supra, no doubt, was agreed upon at the trial, since the improvements had been completed upon the lot. And so of the case of Gillette Bldg. Inspector, etc., v. Firestone Tire Rubber Co., 219 Ala. 513, 122 So. 831. However, we are not informed by this record as to how some of the above cases terminated on the facts agreed upon or shown at the trial.
The immediate questions, as to the evidence before the court, and the results that will be attendant upon the operation of the proposed filling station, are: Will there be an emission of odors, vapor, dust, smoke, gas, and noise, and whether or not there will be thrown from the station or from the headlights of automobiles entering or leaving that station, glaring lights, at unreasonable hours of the night, reflecting into the premises of complainants; or will any or all of said incidents and happenings inevitably disturb the peace and comfort of adjacent property owners; will the operation of a tire service station on said lot inevitably be attended by loud and disagreeable noises, due to the manipulation of steel or other metal parts of automobile wheels with hammers or other instruments, and other noises incident to the operation of a tire shop? Is there evidence that cars entering a proposed filling station will throw their lights directly upon or into private residences in the neighborhood, or at all or unreasonable hours of the night? The foregoing were pertinent inquiries on the hearing upon the facts.
It is admitted by appellee that the cars turning into the proposed filling station from Queen City avenue may, as they make the turn, throw lights on portions of two residences which are 135 feet and 165 feet, respectively, from said station; but the evidence conclusively shows that this will not happen after the station closes at night, and that this is no more than happens every time an automobile turns a corner.
The proposed filling station in this case will be placed "cater-cornered on the lot at the intersection of Thirteenth Street and Queen City Avenue." And there is a tendency of evidence that such a location will minimize this result or prevent the lights from automobiles shining directly on any residence.
When the whole evidence is carefully examined, several important facts are established: (1) That the location and operation of such filling station at the place in question is not necessary for the convenience of citizens living thereabout, and there are ample or sufficient stations to meet the demands in that neighborhood; (2) that, as proposed, there would be two driveways extending diagonally across from Queen City avenue to Thirteenth street, and in passage thereon the automobile lights would shine into the Harrison residence; (3) that cars on the greasing part of the station would reflect into or upon the Cochrane residence; (4) that the property in the immediate neighborhood would be depreciated in market value by reason of such "improvement"; (5) that there was protest to the proposed location of the station, and the same was duly brought to the attention of the petitioners' agent, who thereafter purchased said property against the objection of adjacent or contiguous resident and householders; (6) that the location is at a frequented corner, where collisions have occurred, and that the station would have a tendency to increase that traffic and danger; (7) that there will be no repair department operated, and tires will be changed only in emergency; (8) that at night the station will be brilliantly lighted with shaded lights, yet the lighting will be such as that it will be visible some blocks away; (9) that, as stated otherwise above, for years this has been a neighborhood used for residential purposes; (10) and that the sidewalk of Thirteenth street at said point is in constant use by school children of the city, on an average of about 500 passing twice daily, and that the erection of the proposed station will endanger the children so passing.
We are of opinion that the business indicated should not, over the objections of adjacent and neighboring property owners, be intruded upon that section of the city previously and largely devoted to residential purposes. Bloch v. McCown, 219 Ala. 656, 123 So. 213. And there is no public necessity shown for its location.
Reversed and remanded.
ANDERSON, C. J., and SAYRE and BROWN, JJ., concur.