
    Powell et al. v. Craig et al.
    
      Injunction — Gasoline filling station in residential district — Not a nuisance and cannot he enjoined, token.
    
    Nuisances, 29 Cyc., p. 1174 (1926 Anno.), and 29 Cyc., p. 1220; Courts, 15 C. J., Sec. 332.
    (No. 18943
    Decided June 16, 1925.)
    Error to the Court of Appeals of Fayette county.
    This action was begun in the court of common pleas of Fayette county, wherein the defendants in error sought to enjoin the plaintiffs in error from erecting a filling station on their property.
    The property of the plaintiffs in error consists of approximately three-quarters of an acre of land, situated between Washington avenue and Columbus avenue, at a point where those avenues ■converge into Court street in the city of Washington Court House; the three streets forming a T, in the upper angle of which the property of plaintiffs in error is located.
    The .defendants in error own and reside in properties f-acing upon 'Court street and properties facing upon Washington and Columbus avenues, opposite to the property of plaintiffs in error and in the immediate neighborhood thereof.
    The petition recites:
    “The locality in which said premises are located is exclusively a residence district, and many of the best and most expensive residences in the city of Washington are located in the immediate vicinity thereof, and the plaintiffs, each of them, own residences in that locality, where they have lived for many years, and have constructed and beautified their grounds at large expense, and have heretofore enjoyed their residences free from annoyance by noise, noxious odors, or congested conditions of the streets.”
    The petition further recites that the plaintiffs in error are about to erect thereon a gasoline filling station with the usual appurtenances thereto; that the erection of the filling station and its operation will greatly injure them in the use and enjoyment of their premises, in that the risk of explosion will increase and will endanger persons and property; that the operation of the station will create noxious odors, will cause congestion of the streets, and noise and disorder by persons coming in automobiles to purchase oil and gasoline; and that their properties, will be thereby greatly damaged and depreciated in value, and the enjoyment of their homes will be greatly interfered with, and their quiet, peace, and comfort destroyed. The prayer of the petition is that an injunction be granted.
    The defendants admit the ownership of the property by the respective parties to the suit, and that they intend to erect a filling station upon their property.
    The record discloses that it is the intention of the plaintiffs in error to erect their filling station at some little distance from the point of the triangle formed by the convergence of the three streets; that driveways will be constructed from Court street on their property along both Washington avenue and Columbus avenue, connecting with those avenues, and pumps will be arranged to fill from either driveway;' in other words, they propose to construct an additional Y within the Y formed by the streets and avenues. The record discloses nothing with reference to this proposed filling station materially different from (other modem well-equipped filling stations.
    Upon hearing, the court of common pleas enjoined the construction. The cause was appealed to the court of appeals, and, upon hearing, that court rendered a similar judgment. Error is prosecuted here.
    
      Mr. John Logan; Mr. Troy T. Junk, and Mr. Joseph McGhee, for plaintiffs in error.
    
      Mr. Joseph Éidy; Messrs. Bush S Clyburn, and Mr. A. E. Clevenger, for defendants in error.
   By the Court.

The Court of Appeals in this case, while finding that the construction, maintenance, and operation of a filling station was not a nuisance per se, found that it was a nuisance in this particular case by reason of its location in this exclusively residential district.

Since all nuisances, except nuisances per se, are such by reason of their proximity to other property, this court is confronted with the proposition of determining whether the invasion of an exclusively residential district by this class of business, not unlawful, either by statutory law, common law, or ordinance, constitutes & nuisance, for, notwithstanding the apprehensions of the defendants in error as to the effect the installation and operation of this filling station will have upon the value and their enjoyment of their respective properties, it must be conceded that by reason of the size of the site of plaintiffs in error, and its location with reference to the three streets, and with reference to the properties of the defendants in error, and by reason of the proposed location of the driveways, one substantially parallel to and adjacent to Washington avenue and the other substantially parallel to and adjacent to Golumbus avenue, the damage and inconvenience to defendants in error resulting from the erection of this filling station will in no sense be greater than the damage and inconvenience resulting to the owners and occupiers of residential properties in the vicinity of any filling station in any residential district.

We are of opinion it must also be conceded that the hazard of explosion and fire from a filling station erected according to modern science and engineering .as applied to such structure is not of such magnitude as to make its installation a nuisance for that reason alone.

Having reached the conclusion that, properly installed and properly operated, the filling station is not such a fire or explosion hazard as to constitute a nuisance for that reason alone, we are unable to distinguish it from any other class of business not offensive in itself that attracts substantial patronage, since in this day and age so large a per cent, .of the patrons of every merchant utilize the automobile as a means of conveyance to. and from the merchant’s place of business.

The pronouncement of the Gourt of Appeals, if affirmed, would have a far-reaching influence, and wiould affect business institutions of every kind and character sought to be located in the residence portions of municipalities. The decision of this court in this case necessarily becomes a rule of law applicable to any other business enterprise, differing only in degree, and not in kind.

While courts have never laid down a hard and fast rule whereby a business may be exactly measured for the purpose of determining whether it is a nuisance by reason of its proximity to other property, they will not exercise an arbitrary discretion in that respect, but will apply the same principle to similar situations.

The affirmance of this judgment would necessarily unsettle the rights of many thousands of persons now engaged in business in districts otherwise exclusively residential, for, if it be a nuisance to. establish a business in such district, each day’s operation therein is a new and distinct act constituting a nuisance, and the maintenance of a nuisance is just as much a subject of judicial inquiry as the inauguration of such nuisance.

(Being of opinion that the inconvenience and damage, if any, that will be suffered by the defendants in error by the erection of a filling station on the property of plaintiffs in error are only such as are incident to the proper and lawful use of one’s own property, we are of opinion that the Court of Appeals erred in its application of the law to the facts of this case, and its judgment is therefore reversed.

Judgment reversed-

Marshall, 0. J., Jones, Matthias, Day, Kinkadb and Robinson, JJ., concur.

Allen, J., not participating.  