A public service station for supplying gasoline to automobiles, conducted in a structure architecturally and aesthetically without offence, where no repairs are to be made and all unnecessary noise to be avoided, and gasoline is to be stored in underground tanks, is not a nuisance per se in a residential neighborhood; and the construction of such a building and its use for such a purpose will not be enjoined. 'Automobiles are a prominent feature of modern life. Their use is constantly growing. Gasoline is required for their operation, and convenient stations for supply are necessary. A plant for the storage of gasoline is not a nuisance per se. The sale of gasoline being lawful and legitimate, it is presumed the business will be properly conducted. The evidence shows the progress made in recent years in providing safeguards against danger in its use. The proposed station being in the open air, there ought not to be as much danger to pedestrians in crossing the entrance to the station as there is in crossing streets, since the patrons of the station must necessarily slacken speed to make the turn, something frequently disregarded at street crossings. It is doubtful if these plaintiff's have standing to complain on behalf of casual pedestrians, but it is unnecessary to lay stress upon the point. The trial judge has considered the evidence as though it were relative and has been obliged to conclude that the business proposed would not be a nuisance in that regard. Neither is it established that there will be an increase of noises and odors over and above those now inevitable from the existence of a trolley line, two garages and a daily passage of thousands of automobiles. Where an employment is useful and is not a nuisance per se, the fact that it will produce some discomfort and even some injury to those nearby will not justify an injunction. It cannot be safely predicted that the proposed employment will produce discomfort or injury. Whether it will or not, will depend upon circumstances. When these results are only apprehended and contingent, a court of equity cannot interfere." 24 The storage of gasoline in tanks underground, in strict compliance with an ordinance regulating the same, is not a nuisance per se.25 After an owner had spent large sums in the erection of a gasoline tank, for which he had been issued a permit by the city, an ordinance thereafter enacted prohibiting the erection of such a tank within 1,000 feet of a dwelling, was held to be unreasonable and void; the tank in question being near a dwelling.26 When a city seeks to enjoin the operation of a filling station, it has the burden of alleging and proving facts which will differentiate it from a business of the kind as it is ordinarily conducted, and the facts relied on must show with reasonable certainty that a nuisance has resulted or will result from its operation.27 A plaintiff who is not entitled to the recovery of damages, is not entitled to an injunction.28 § 1397. Maintenance of filling station in violation of ordinance enjoined, when. In an action for injunction for the violation of a municipal ordinance regulating the location of a gasoline filling station, equity will not restrain the act which violates such ordinance unless the act is a nuisance per se or operates to cause an irreparable injury to property or rights of a pecuniary nature. "Where relief is asked by injunction, against the commission of an act constituting a violation of a municipal ordinance on the ground of injury to the property rights of an individual, the court will require that the complainants clearly show such facts and circumstances in the particular case as will justify the court in granting the relief desired.' 29 The operation of a gasoline and oil filling station in a district restricted by ordinance enacted under authority of a statute, may be enjoined.30 § 1398. Municipal regulation and licensing. Under a proper grant of legislative authority, a city may regulate the operation of filling stations, and impose a license or business tax thereon.31 In a Georgia case, it is held that the city of Savannah also has authority to make a reasonable classification of the general business of selling automobiles, selling or furnishing gasoline, or oil of any kind, etc., and to levy a tax on each of such classes. And where such a tax is levied, and one person conducts several of such businesses, he may be made liable to a tax on each, although one branch of the business may be conducted in a building, and the other on the sidewalk in front of the same building.32 Express legislative authority is necessary to give cities the power to create zones or restricted residence districts within a city whereby owners of lands therein shall be prohibited from constructing business houses in which to carry on legitimate lines of business. An ordinance, passed without such authority, which provides that it shall be unlawful to erect a filling station, within 100 feet of a residence, to be used in furnishing customers gasoline and oil for motor vehicles without the consent of the city commissioners, is an arbitrary and unreasonable exercise of municipal authority, and is void.38 81 Lewis v. Savannah, 151 Ga. 489, 107 S. E. 588 (1921). City may regulate building used for petroleum products. Stone v. Texas Co., 180 N. C. 546, 105 S. E. 425 (1920). 32 Lewis v. Savannah, 151 Ga. 489, 107 S. E. 588 (1921). 33 Julian v. Golden Rule Oil Co., 112 Kan. 671, 212 Pac. 884 (1923). "In Standard Oil Co. v. Kearney, 106 Neb. 558, 184 N. W. 109, 18 A. L. R. 95, a city ordinance was enacted which prohibited the erection of a filling station in a certain defined dis trict. The only authority for the enactment was the welfare provision to be found in city charter acts. It was held that the ordinance was an unreasonable and arbitrary exercise of municipal authority, and was therefore void. In the instant case the granting or withholding of consent by the city commissioners was left within their unguided and unlimited discretion or will. Without regard to the precautions proposed to be taken for the safety and protection of those on neighboring grounds, and whether or not the filling station would be more annoying or injurious to plaintiff than the location of other business establishments on the same site, the appli An ordinance prohibiting the erection of any gasoline service station without a permit issued by the city council, which had power to withhold the same if it deemed it to be for the public interest to do so, has been held to be a proper exercise of the police power. § 1399. Power of legislature to authorize placing of filling pumps in streets. It has been conceded that the legislature of a state may confer the power upon municipal corporations to authorize abutting property owners to place gasoline tanks under the sidewalks with filling pumps at the outer edge of the walk for the purpose of supplying gasoline to automobiles.35 § 1400. Permitting use of public street for gasoline pump-Power of municipalities. The better rule, and the one supported by the weight of authority, seems to be that a municipal corporation is without power, in the absence of legislative enactment expressly permitting it, to authorize the use of a public street for a gasoline filling pump, constituting a permanent obstruction therein.36 A grant of power as follows was held to confer such authority: cation might be refused by the city officers.'' Julian v. Golden Rule Oil Co., 112 Kan. 671, 212 Pac. 884 (1923). 34 State ex rel. v. Fleming, 225 Pac. 647 (1924). Wash. 35 New Orleans v. Shuler, 140 La. 657, 73 So. 715 (1917). Ga. 36 Savannah v. Markowitz, 118 S. E. 558 (1923); Keyser v. Boise, 30 Idaho 440, 165 Pac. 1121, L. R. A. 1917F 1004 (1917); Kahabka Schwab, 205 App. Div. 368, 199 N. Y. Supp. 551 (1923). V. "The gasoline tanks, while no doubt useful to many persons using the public streets, constitute a nonessential and private use a use for the gain of the owner of the stand, and not a use in a public or even quasi public capacity. Neither in the provisions of the charter nor any other statute to which our attention has been called have we found authority to authorize the city to divert the public streets to such private use. On this point, Mr. Justice Hubbs said in the Hofeller "It is conceded that a municipality has no right or authority to grant a license for the use of the public streets in an unlawful and illegal way, and that if the news stands in question are unlawful and constitute obstructions it makes no difference whether or not they were authorized by the city of Buffalo or how long the city has permitted them to be so used, for a city holds the streets for the public use of all the people. Shipston v. City of "Cases of obstructions in the streets 86, the of "So, too, with respect to street awnings, which have been held to be within the power of the city authorities to authorize, the Legislature has classified them with signs, horse troughs, telegraph posts and such like purposes, as legitimate street uses. See Consolidation Act of 1882, c. 410, § and City Charters, in section 49 of Act of 1897, and section 50 in Act1901; Hoey v. Gilroy, 129 N. Y. 1 32. They are, within common-law rules, croachments and obstructions; but most that could be said is that, if Legislature has stretched its power delegating to the governing body of municipality the right to authorize erection of awnings, such an encro ment is of too unsubstantial a na to be seriously considered as a pu nuisance.'"' Kahabka v. Schwab, App. Div. 368, 199 N. Y. Supp. (1923). en the the in the the chure lic 205 551 "The city shall also have all powers, privileges and functions which, by or pursuant to the constitution of this state, have been, or could be, granted to or exercised by any city. The legislative, executive and judicial powers of the city shall extend to all matters of local and municipal government, it being the intent thereof that the specifications of particular powers by any other provision of this charter shall never be construed as impairing the effect of the general grant of powers of local government hereby bestowed. "It would be impossible," said the court, "to express more emphatically than by the language thus used the intention to confer upon the city all the power that it is competent for the General Assembly to confer upon any municipal corporation." 37 Those engaged in selling gasoline to passing automobiles in the city of New Orleans put their gasoline pumps on the outer edge of the sidewalks in front of their premises, and buried their supply tanks under the sidewalks. The defendant had one of these stations when the city adopted an ordinance forbidding under penalty of a fine this use of the sidewalks unless by permission of the council; one of the conditions of such permission being the payment to the city of an annual fee. He refused to pay, and was prosecuted. Held, that the ordinance was valid.38 A village was held to have power to prohibit the installation of filling pumps on a public sidewalk, and the conducting of business thereon,39 § 1401. Same-Revocation of permit. It is quite clear that if a municipality is without authority to authorize the use of a public street for a gasoline pump or filling station, and it nevertheless issues permission to do so, it may revoke such permit at pleasure, although expense has been incurred on the faith of it.40 It is a well known rule, supported by the weight of authority, that the holder of a permit to install an obstruction in a public street or highway, for a private purpose, acquires no property or contractual right by reason of the issuance to him of such permit, and that whenever the proper public authorities, in their discretion, deem it necessary, as a proper police measure, to vacate and revoke such permit, the holder of the same has no alternative, but must comply 37 New Orleans v. Shuler, 140 La. 657, 73 So. 715 (1917). Authority held not granted.-Under section 3 of an act approved August 16, 1915 (Acts 1915, p. 825), which grants "authority to regulate the use of the streets of the city of Savannah for business purposes,' express legislative authority is not given the mayor and aldermen of the city of Savannah to grant the right to erect or maintain a gasoline filling station in a public street within the city of Savannah. Nor is such authority conferred by the act of the Legislature of 1893 (Acts 1893, p. 307), whereby the city of with the order of revocation. If a person making such private use of a street goes to expense, he does so at his risk, and he will not be heard to complain that his property is being taken without due process of law.41 A permit authorizing the construction of a gasoline and oil filling station by a grantee who had not acquired title to the property, was properly rescinded, where the officials acted with reasonable promptness, the building had not been constructed, and where, at the time the application for such permit was made, there was pending in the city council a bill to establish a restricted district, which included the site of the proposed station, of which fact the grantee had knowledge.42 It has been held that where a city has granted a permit for the erection of a filling station, an ordinance subsequently enacted relative to the granting of permits for filling stations does not apply to such prior grantee.43 § 1402. Liability of municipality. One Sternbach was given per mission by the town council to place a gasoline tank and pump con nected therewith in and on the sidewalk, on Main street in the village of Phenix. The tank and pump were placed in the sidewalk under the direction of the town official in charge of the town highways. The sidewalk was 6 feet wide. The pump, which was 18 inches in diameter, was placed in position 12 inches inside from the curb. The handle of the pump when attached to the pump extended 83 inches beyond the side of the pump over the sidewalk. This handle could be detached when the pump was not in use, but the evidence is that it was the usual practice to leave the handle on the pump all of the time. The town had notice of this practice. Plaintiff, while walking on the sidewalk, in the early evening of January 17, 1921, came into collision with the projecting handle of the gasoline pump, and as a result fell to the ground and suffered serious injury. It was dark at the time of the accident, and this particular locality was unlighted. It was held that the defendant town was liable, and verdict for plaintiff was upheld.44 41 Keyser v. Boise, 30 Idaho 440, 165 Pac. 1121, L. R. A. 1917F 1004 (1917). See also, Le Blanc v. New Orleans, 138 La. 243, 139 La. 113, 71 So. 248 (1916); New Orleans v. Shuler, 140 La. 657, 73 So. 715 (1917). 42 Des Moines v. Manhattan Oil Co., Ia., 184 N. W. 823 (1921). 43 Invader Oil & Ref. Co. v. Ft. Worth, Tex. Civ. App. 229 S. W. 616 (1921). 44"The question of contributory negligence was properly submitted to the jury. Defendant claims that the town, even if guilty of negligence, is not liable; that the proximate cause of the accident was the negligence of Sternbach in leaving the handle on the pump, and seeks to support this con tention on the authority of Mahogany v. Ward, 16 R. I. 479, 17 Atl. 860, 27 Am. St. Rep. 753, to the effect that the negligence of a responsible agent, intervening between the defendant s negligence and the injury suffered, breaks the causal connection between the two. But this principle is not ap plicable to the facts of the case at bar. The negligence alleged in this case is not the temporary failure of Sternbach to remove the handle of the pump, but the gist of the action is that the town, after notice that the handle was usually left attached to the pump, by its failure to take appropriate action thereby in effect per mitted this dangerous obstruction to travel to remain on the sidewalk. This |