Morgan v. High Penn Oil Co.

238 N.C. 185, 77 S.E.2d 682 (1953)

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Nature of the Case

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Facts

Ps own land which includes a dwelling-house, a restaurant, and accommodations for thirty-two habitable trailers. The dwelling-house existed at the time of the purchases of the plaintiffs and has been occupied by them as their home since 1945. Ps constructed the restaurant and the trailer accommodations immediately after they established their residence on the premises, and have been renting these improvements since their completion to third persons. During 1950, D erected an oil refinery upon the then unused portion of the tract of land owned by Southern Oil Transportation Company to renovate used lubricating oil drained from motor vehicles. The oil refinery is approximately 1,000 feet from the dwelling of the plaintiffs. Within a radius of one mile of the oil refinery there is a church; at least twenty-nine private dwellings; four tourist and trailer camps; a grocery store; two restaurants; a nursery appropriated to the propagation of young trees, shrubs, and plants; three motor vehicle service stations; two motor vehicle repair shops; a railroad track; the terminus of a gasoline pipeline; numerous large storage tanks capable of storing sixty million gallons of gasoline; and the headquarters of at least four motor truck companies engaged in the transportation of petroleum products and other property for hire. Railway tank cars and motor tank trucks are filled with gasoline at the storage tanks for conveyance to various places at virtually all hours of the day and night. Ps advised the Southern Oil Transportation Company and D that the oil refinery created a nuisance by polluting the atmosphere of the neighborhood, and demanded that they forthwith put an end to the atmospheric pollution. The Southern Oil Transportation Company ignored this demand. D continued its operation of the oil refinery. P sued Ds alleging that the oil refinery is so constructed and operated as to constitute a nuisance in that it substantially pollutes the atmosphere of the entire neighborhood and thus injuriously affects Ps in the use and enjoyment of their land; that Ds persist in maintaining the nuisance after notice from Ps to abate it; and that Ps will suffer an irreparable loss of their property rights if the nuisance is not abated. The complaint prays for temporary damages and an abatement of the alleged nuisance by injunction. The evidence of Ps tended to show that for some hours on two or three different days during each week of its operation by D emitted nauseating gases and odors in great quantities; that the nauseating gases and odors invaded the nine acres owned by Ps and the other lands located within 'a mile and three-quarters or two miles' of the oil refinery. Ps claimed that the gases render persons of ordinary sensitiveness uncomfortable and sick; that the operation of the oil refinery thus substantially impaired the use and enjoyment of the nine acres by Ps and their renters; and that Ds failed to put an end to the atmospheric pollution arising out of the operation of the oil refinery after notice and demand from Ps to abate it. The trial judge submitted the issues to the jury. The jury found a nuisance and awarded Ps $2,500. The trial judge entered a judgment on the verdict awarding Ps damages against both defendants in the sum of $2,500.00, and enjoining Ds 'from continuing the nuisance alleged in the complaint.' Everyone appealed.