WLADYSLAW CZAPSKI vs. SUN OIL COMPANY & another.

WLADYSLAW CZAPSKI vs. SUN OIL COMPANY & another.

303 Mass. 186

December 5, 1938 - May 23, 1939

Suffolk County

Present: FIELD, C.J., LUMMUS, QUA, DOLAN, & RONAN, JJ.

A gasoline filling station duly licensed by the proper public authorities and operated in a reasonable and careful manner was not a nuisance to an adjoining landowner.

BILL IN EQUITY, filed in the Superior Court on December 3, 1937.

The suit was heard by T. J. Hammond, J.

J. K. Jerome, (A. Sigel with him,) for the plaintiff.

W. F. Farr, (D. G. Allen with him,) for the defendants.

LUMMUS, J. The plaintiff appeals from a final decree dismissing his bill to restrain the operation by the defendants of a gasoline filling station adjoining the plaintiff's tenement houses, the kitchens of which overlook it. The judge found no unnecessary noise or odor. But the evidence is reported, and we are bound to make findings for ourselves, giving to the findings of the judge the weight required by a rule too familiar to need restatement. Trade Mutual Liability Ins. Co. v. Peters, 291 Mass. 79 , 83, 84. Spiegel v. Beacon Participations, Inc. 297 Mass. 398 , 407-408. Smith v. Stratton, 302 Mass. 17 , 19-20.

The evidence showed some noise, and an objectionable odor, but nothing beyond the natural incidents of the reasonable and careful conduct of a gasoline filling station. Since it is conceded that the defendants were licensed by the proper public authorities to maintain such a station, the plaintiff cannot restrain as a nuisance the doing in a reasonable and careful manner of the very act licensed. Sawyer v. Davis, 136 Mass. 239 . White v. Kenney, 157 Mass. 12 . Murtha v. Lovewell, 166 Mass. 391 . Commonwealth v. Packard, 185 Mass. 64 . Levin v. Goodwin, 191 Mass. 341 . Strachan v. Beacon Oil Co. 251 Mass. 479 , 487,

Page 187

488. Marshall v. Holbrook, 276 Mass. 341 , 346. See also St. James Building Corp. v. Commissioner of Public Safety, 260 Mass. 548 ; Hanauer v. State Fire Marshal, 271 Mass. 506 . Compare Hakkila v. Old Colony Broken Stone & Concrete Co. 264 Mass. 447 ; Tortorella v. H. Traiser & Co. Inc. 284 Mass. 497 , 501.

Decree affirmed with costs.