hood was discussed in the recent case of Hohl v. Modell, 264 Pa. 516, 107 Atl. 885, and determined adversely to defendants in this case. The court below after referring to the facts in Hohl v. Modell, and quoting from the opinion in that case said: "All the annoyances and inconveniences suffered by by the neighbors in the Hohl Case will be imposed upon the neighbors in the case at bar, by the use and maintenance of the defendants' buildings as garages; probably more so, by reason of the narrowness of the driveway and the per liar construction and arrangement of the defendants' buildings."

This conclusion of the court below is fully sustained by the facts.

-how determined.

The question as to what constitutes a nuisance depends upon the nature and result of the acts of which complaint is made, and not upon the means by which produced, or the particular description applied to them. Accordingly, the mere fact that the building was intended as a "private," as distin

-garage as.

guished from a "public," garage is not the determining factor in the case. A so-called "private" garage may be operated in such manner and on so large a scale that the annoyance and disturbance resulting therefrom to residents in the vicinity may be fully as great or even greater than would result from the operation of a small public garage at the same place. Premises used for the purpose of housing automobiles belonging to others, espe- Covenant

cially to the extent against offenhere proposed, is sive businessconducting a busi

when broken.

ness thereon, regardless of whether storage space is rented by the day or week to any member of the public who may apply, or whether he leases by the month or year, by special contract made in advance, and, in the latter case, whether such business is an offensive one or a nuisance in the neighborhood is one of fact, depending upon all the circumstances of the case.

The decree is affirmed at costs of appellants.

Atl. 383; Bloom v. Ventnor City (1926) N. J. L., 132 Atl. 243.

New York. Sherman v. Levingston (1910) 128 N. Y. Supp. 581; Owid v. Moushaty (1925) 125 Misc. 535, 211 N. Y. Supp. 478.

Pennsylvania. Phillips v. Donaldson (1920) 269 Pa. 244, 112 Atl. 236; Mitchell v. Guaranty Corp. (1925) 283 Pa. 361, 129 Atl. 114; Unger v. Edgewood Garage (1926) 287 Pa. 14, 134 Atl. 394; Eckman v. Irvin (1918) 27 Pa. Dist. R. 795; Smith v. Wenger (1919) 29 Pa. Dist. R. 399; Dunn v. Armstrong (1920) 29 Pa. Dist. R. 1061. Texas. Lewis v. Berney (1921) Tex. Civ. App. 230 S. W. 246. Wisconsin. Wasilewski v. Biedrzycki (1923) 180 Wis. 633, 192 N. W. 989.

In Radney v. Ashland (Ala.) supra, it was held that a dilapidated barn constructed of pine and used as a livery barn and garage, with the incidental storage of gasolene and foodstuffs, was not a public nuisance, although located near store buildings which would be endangered should it take fire, and also near a jail, the lives of whose inmates would be imperiled by its burning. The test, according to the court, was not whether there was a possibility of fire, but whether it was "probable" that fires would result from such a building.

A public garage is not a nuisance per se; if, in the prosecution of a garage business, a nuisance is created, a court of equity will interfere; otherwise it will not. Ronan v. Barr (1913) 82 N. J. Eq. 563, 89 Atl. 282.

A public garage is not a nuisance per se. Whether it is a nuisance in fact depends upon the manner in which it is kept and the business is conducted.

Bourgeois V. Miller (1918) 89 N. J. Eq. 285, 104 Atl. 383. A public garage is not a nuisance per se, as is a glue factory. Phillips v. Donaldson (Pa.) supra.

And in Bloom v. Ventnor City (N. J.) supra, it was said that there was nothing in a public garage which makes it per se detrimental to public health, safety, or welfare. And see to the same effect, Reimer v. Dallas (1925) — N. J. L. - 129 Atl. 390. But, although a public garage is not per se a nuisance, it may become so when conducted in an exclusively residential section. Huddleston v. Burnett (1926) — Ark. —, 287 S. W. 1013; Hohl v. Modell (1919) 264 Pa. 516, 107 Atl. 885; Phillips v. Donaldson (Pa.) supra; Hunter v. Wood (1923) 277 Pa. 150, 120 Atl. 781; Slingluff v. Tyson (1924) 280 Pa. 206, 124 Atl. 420; Mitchell v. Guaranty Corp. (1925) 283 Pa. 361, 129 Atl. 114; Unger v. Edgewood Garage (1926) 287 Pa. 14, 134 Atl. 394; Prendergast v. Walls (1916) 25 Pa. Dist. R. 1079, affirmed in (1917) 257 Pa. 547, 101 Atl. 826; Raymond v. Fisher (1919) 29 Pa. Dist. R. 37; Lewis v. Berney (Tex.) supra.

Thus, in Huddleston V. Burnett

(Ark.) supra, the maintenance of a filling station and garage in a distinctively residential district was prohibited where it was shown that it would produce a disturbing noise, such as the honking of horns of automobiles waiting for gas, the stopping and starting of automobiles, testing of motors, etc., to the "intolerable" nuisance of the neighborhood.

A public garage has been determined to be a nuisance in a residential district, whether it was in violation of a building restriction or an annoyance to the general community. Phillips v. Donaldson (1920) 269 Pa. 244, 112 Atl. 236.

On the other hand, such garage would not be a nuisance in a section devoted to business purposes. Phillips v. Donaldson (Pa.) supra; Unger v. Edgewood Garage (1926) 287 Pa. 14, 134 Atl. 394.

And it was pointed out in Hunter v. Wood (1923) 277 Pa. 150, 120 Atl. 781, that, should the character of the neighborhood be changed from residential to business, property owners would be without standing to complain of noise and disturbance of their privacy and personal comfort incident to such change, but must endure such inconveniences or move to a neighborhood not disturbed by commercial activities.

In Phillips v. Donaldson (Pa.) supra, the court did not find it necessary to go to the extent of absolutely holding that the operation of a public garage in a residential district was a nuisance, but allowed an injunction restraining the operation of such a garage in such a district, on the ground that it was violative of a building covenant between the grantee and the grantor, that the grantee would not carry on, upon the premises granted, any noxious or offensive trade, business, or employment, to the hurt, damage, or annoyance of others who had purchased or might thereafter purchase in said plan.

The operation of a public garage in a high-class residential district should be restrained as a public nuisance. Slingluff v. Tyson (1924) 280 Pa. 206, 124 Atl. 420. In this case an injunc

tion was granted restraining the operation of an automobile sales and service station in a residential section, although at the proposed service station in the rear of the salesroom only minor repairs, adjustments, etc., were to be made on the particular brand of cars sold in the salesroom, and no machinery was to be installed or operated on the premises, and neither gasolene nor oil was to be stored or kept for sale, the court being of the opinion that, judging by the size of the proposed building, the number of cars brought in for service and minor repairs would be so large as practically to eliminate all difference between the proposed business and that of the average public garage, and that such a business would inevitably result in noise, odors, or other annoyance, tending to depreciate the value of residential properties in the neighborhood and disturb the occupants in the peaceful enjoyment of their homes, and the proposed building would thus constitute a nuisance.

And, in Mitchell v. Guaranty Corp. (1925) 283 Pa. 361, 129 Atl. 114, it was held that a public garage, or a public service station (the latter differing only in name from a garage, according to the court), was not a nuisance per se, but might become such in fact when conducted in a residential neighborhood. The court said: "The annoyances incident to the business of a public garage, or public service station, regardless of the manner of its construction or operation, are such as to require its exclusion from residential neighborhoods."

And in Raymond v. Fisher (1919) 29 Pa. Dist. R. 37, it was held that the maintenance of a garage in a residential neighborhood would constitute a nuisance, where it was chown that, in the operation of the garage, there would necessarily be noises, odors, and dangers, that the passing of automobiles to and from the garage would endanger the lives and safety of children accustomed to play in the street, and that within a radius of three blocks of the location of the proposed garage there were 129 garages, public and private, and an injunction was

granted restraining the erection of such a structure.

And in the reported case (GEORGE V. GOODOVICH, ante, 105) two so-called "private" garages erected in a residential neighborhood were restrained as a nuisance, it being shown that each of the two garage buildings was to be divided into ten separate compartments, which were to be rented to individual owners of automobiles, who were to have sole charge of their individual garages, no service of any kind to be furnished by the owners of the two garage buildings and no supplies to be sold on the premises, but that noises, unpleasant fumes, etc., incidental to driving cars in and out of the compartments would necessarily disturb people in the nearby houses.

In Lewis v. Berney (1921) — Tex. Civ. App., 230 S. W. 246, the court held that a public garage and filling station in the heart of an exclusively residential section, where no such business existed or ever had existed, would seriously injure the health of the residents of the vicinity, impair the value of their properties, increase the fire risk of such properties, and render the vicinity undesirable for residential purposes, and would thus be a nuisance. It was pointed out in the decision that a public garage was not a nuisance per se, and if lawfully operated in a neighborhood substantially given over to similar businesses, or to other industrial concerns, would not in any event, perhaps, constitute a nuisance; but when established and operated in a strictly residential section it becomes a nuisance, and, upon complaint of the residents, the courts unhesitatingly restrain the operation of such garages.

After holding that a public garage is not a nuisance per se, but a lawful and useful business, it was pointed out in Nevins v. McGavock (1925) 214 Ala. 93, 106 So. 597, that a lawful business may become a nuisance when maintained in certain localities, the inference being that a garage might in some localities be a nuisance.

In People ex rel. Busching v. Ericsson (1914) 263 Ill. 368, L.R.A. 1915D, 607, 105 N. E. 315, Ann. Cas.

1915C, 183, it was conceded that the business of conducting a public garage does not constitute a nuisance per se. "But," said the court, "it is a matter of common knowledge that the automobile propelled by the use of gasolene is a large and sometimes noisy machine, which frequently, when in operation, emits an offensive odor. Automobiles go in and out of public garages at all hours of the day and night, producing noises which must necessarily interfere with the comfort and welfare of those in the immediate vicinity. In the starting of these machines, and in the testing and repair of their engines, a considerable noise is unavoidable. Gasolene and oil are used in places of this kind, and it is necessary to keep a considerable quantity of gasolene constantly on hand, which is transferred to the tanks of automobiles propelled by this means. In making this transfer a portion of it necessarily becomes vapor, thus creating a menace both because of the odor of the fumes and their inflammable character. The power of the legislature to regulate such a business is in no way dependent upon the question whether it is a nuisance per se. It is of such a character that it becomes a nuisance when conducted in particular localities and under certain conditions, and it is clearly within the province of the legislature, in the exercise of the police power, to authorize the municipalities of the state to direct the location of public garages."

In Hibberd v. Edwards (1912) 235 Pa. 454, 84 Atl. 437, it was held that a garage, which would cause noise and from which would emanate odors offensive and disagreeable, interfering with the comfort and enjoyment of the residents of near-by dwelling houses, was within a building restriction forbidding the building upon the land of any tavern, drinking saloon, steam mill, tannery, slaughterhouse, skin-dressing establishment, glue, soap, candle or starch factory, "or other building for offensive purpose or occupation.' See to the same effect, Hohl v. Modell (1919) 264 Pa. 516, 107 Atl. 885.

And, although the question of nuisance is not discussed in Evans v.

Foss (1907) 194 Mass. 513, 9 L.R.A. (N.S.) 1039, 80 N. E. 587, 11 Ann. Cas. 171, it is held that a garage to accommodate about 125 automobiles of the larger type, and to serve as a storeroom and depository in which demonstration cars would be kept, and containing a repair shop, may be found to be violative of a covenant in deeds subdividing a tract of land, which forbids the erection on the property of any building for shops or "any other business which shall be offensive to the neighborhood for dwelling houses." The question of restrictive covenants, however, is beyond the scope of this annotation.

As suggested above, it would seem that a garage erected and maintained in a section which has changed from an exclusively residential section into one which is no longer purely residential does not constitute a nui

sance.

Thus, in Phillips v. Dunseith (1919) 29 Pa. Dist. R. 205, an injunction restraining the operation of a public garage in a district which had changed from a quiet, high-class residential district to one which was no longer purely residential in character, and in which there were much noise and confusion, was denied, the court holding that a public garage so operated that there was no danger to pedestrian travel and no emission of noxious. odors was not a nuisance, and was not a violation of a covenant prohibiting any noxious or offensive business.

And in Smith v. Wenger (1920) 29 Pa. Dist. R. 399, the court held that an automobile garage is not a nuisance per se at all times and under all circumstances, regardless of location or surroundings, although it may be held to be a nuisance per se in certain localities and under certain circumstances; as where there are express covenants against offensive use and use in strictly residential neighborhoods. Thus, in the instant case, it was held that the erection of a modern, fireproof public garage, which would be of great convenience to the public, in a neighborhood which was being developed for the use of hotels, apartment houses, and clubs, would

not constitute a nuisance per se, and an injunction to restrain the erection of such a structure would not lie at the suit of the owner of a private dwelling house in the locality. Of course, if nuisance resulted from the future operation of the proposed garage, the aggrieved parties might assert their rights and file a bill to abate such nuisance.

So, also, in Dunn v. Armstrong (1920) 29 Pa. Dist. R. 1061, the evidence was found insufficient to show a nuisance resulting from the operation of an eighteen-stall garage for the mere storage of automobiles, in a section which was not exclusively residential, business houses, etc., being within a radius of a few mintues' walk from the site of the proposed garage, and where it was shown that no gasolene was to be stored or sold on the garage premises, that the inconvenience from noise and odors incident to the operation of the garage was of a negligible nature, and that the only cars that would be repaired on the premises would be those stored therein.

And in Eckman v. Irvin (1918) 27 Pa. Dist. R. 795, it was held that a garage building which was to be divided into twenty-two compartments, each separate compartment or garage to be rented out to an individual tenant, who would have charge of his own garage and take care of his own automobile, his own gasolene, lubricating oil, and other supplies, no machine shop or supply store to be connected with the operations of the garage, which was proposed to be erected in a residential neighborhood, would not constitute a nuisance.

And it seems that a private garage in a residential section does not constitute a nuisance.

Thus, in Bergman v. Davis (1919) 29 Pa. Dist. R. 102, it was held that a private garage in a residential section was not a nuisance; of course, if a nuisance was created in the operation of such a garage, the aggrieved party or parties would be entitled to relief.

And in Miller v. Jersey Coast Resorts Corp. (1925) 98 N. J. Eq. 289,

130 Atl. 824, it was held that the erection of garages on property, for the accommodation of the occupants of a dwelling house on the property, did not constitute a nuisance.

And in Dallas Land & Loan Co. v. Garrett (1925) Tex. Civ. App. 276 S. W. 471, the court said that a garage is not a nuisance, and that it could not assume that a garage proposed to be erected for the benefit of tenants of an apartment house would be so used by the tenants as to create a nuisance.

In some jurisdictions public garages, if properly conducted with a view to minimizing as much as possible the noise and odors incident to their operation, so as not to offend unduly the sensibilities of the average person, have been held not to constitute nuisances, although maintained in residential districts.

Thus, in Sherman v. Levingston (1910) 128 N. Y. Supp. 581, a suit to enjoin the opening and maintaining of a public garage in a residential district, after stating that the plaintiff, to be entitled to injunctive relief, must establish the fact that the garage would inevitably prove a nuisance, and that it must be shown that the business proposed to be conducted was a nuisance per se, the court remarked: "This, it seems to me, plaintiff has failed to do. Upon all the evidence, I am convinced that a public garage may be so conducted that its objectionable features may be eliminated, or at least minimized to an extent that its operation will not unduly annoy or inconvenience those who reside near by. It appears that defendant has erected a substantial fireproof structure, and that it is proposed to conduct the business for which it is designed in a reasonable manner, so that the rights of neighboring dwellers will not be unduly encroached upon. It is quite likely that many people, for sentimental or other reasons, might object to the location of a public garage, or indeed any public business, near their home; but, so long as the business to be carried on is legitimate, fanciful objection should not be permitted to prevent its operation. Undoubtedly