#### Francis H. HILLIARD, Plaintiff-Appellant, v. Elden Ray SHUFF, Defendant-Appellee.

No. 3197.

Court of Appeal of Louisiana, Third Circuit.

Nov. 2, 1970.

Rehearing Denied Dec. 3, 1970.

Writ Granted Jan. 18, 1971.

*57Pugh, Buatt, Landry & Pugh by Lawrence G. Pugh, Jr., Crowley, for plaintiff-appellant.

Edwards, Edwards & Broadhurst by Homer Barousse, Jr., Crowley, for defendant-appellee.

Before FRUGÉ, SAVOY and HOOD, JJ.

SAVOY, Judge.

Plaintiff filed suit against defendant for an injunction to abate an alleged nuisance. Plaintiff alleged that he owned a tract of land on which he and his family live. Said land is located north of Interstate Highway 10 near Crowley, Louisiana. Defendant leased a four-acre tract of land south of his and operates on said premises a truck stop, restaurant and car wash. The majority of the defendant’s customers are the operators of large trailer trucks which consume diesel fuel. Gasoline is also sold on the premises. Defendant sells approximately 3,000 gallons of the above named products daily; that in order to store the diesel and gasoline defendant constructed on the leased premises, within five feet of plaintiff’s property line and 150 feet from plaintiff’s home, four above ground fuel storage tanks. Two of the tanks are approximately 20 feet in height and each has a storage capacity of 16,800 gallons. The other two tanks are approximately 15 feet high and each has a capacity of 12,-600 gallons. Pipelines run from the tanks to the pumps from which the fuel is dispensed.

Plaintiff became concerned about the tanks being so close to his home and asked defendant to either move them to another portion of the four acres leased or to bury them underground. Defendant refused to comply with this request, and the instant suit followed. Defendant filed an answer generally denying all material allegations of the petition. After a trial on the merits judgment was rendered in favor of defendant and against plaintiff. Plaintiff appealed.

In oral argument and in his brief counsel for appellant states that the district court *58was in error in finding that the tanks owned by defendant on the leased premises did not constitute a nuisance.

Counsel for plaintiff relies on LSA-C.C. Articles 667, 668 and 669, and on the expert testimony of Messrs. Ronald Lewis and Charles R. Houssiere, Jr., both petroleum experts, in support of his position.

LSA-C.C. Articles 667, 668 and 669 provide as follows :

> *"Art. 667. Limitations on me of property.*

> “Although a proprietor may do with his estate whatever he pleases, still he can not make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him.’’

> *"Art. 668. Inconvenience to neighbor.*

> “Art. 668. Although one be not at liberty to make any work by wlych his neighbor’s buildings may be damaged, yet every one has the liberty of doing on his own ground whatsoever he pleases, although it should occasion some inconvenience to his neighbor.

> “Thus he who is not subject to any servitude originating from a particular agreement in that respect, may raise his house as' high as he pleases, although by such elevation he should darken the lights of his neighbors’s [neighbor’s] house, because, this act occasions only an inconvenience, but not a real damage.”

> *"Art. 669. Regulation of inconvenience.*

> “If the works or materials for any man-ufactory or other operation, cause an inconvenience to those in the same or in the neighboring houses, by diffusing smoke or nauseous smell, and there be no servitude established by which they are regulated, their sufferance must be determined by the rules of the police, or the customs of the place.”

Mr. Lewis testified he examined the premises leased by defendant one time for about forty-five minutes. He said the tanks were constructed in accordance with the American Petroleum Institute standards designated as 12F; that the tanks were designed to store crude oil and not for storing refined products; that refined products create a vapor pressure, and to store these products, it is necessary to have a structurally sound tank; that in the case of crude oil storage the internal pressure is two pounds per square inch, whereas in the case of refined products the internal pressure will vary between two and ten pounds per square inch if the tanks were properly sealed. In the instant case the witness determined that the tanks were not properly sealed and vapors escaped from the tank into the atmosphere. As the tanks are presently situated, there is danger because of the escaping fumes. These are combustible, and if they come in contact with an open flame or some temperature that is high enough to cause ignition, they could possibly cause a flame and burn. If the flames reached the tank, it would explode. He concluded his testimony by stating that after an examination of the premises, he was of the opinion that the tanks as presently constructed pose a dangerous condition.

On cross-examination Mr. Lewis stated that there were vents on the tanks. He admitted that if the vents were four ounces, then the pressure in the tanks would be well within the two pound per square inch as determined by A.P.I. standards.

Mr. Houssiere testified that he had worked with Lewis in investigating the situation concerned herein. He concurred in Mr. Lewis’ opinion. He took into consideration the testimony of defendant that at times the entire premises were covered with large trailer trucks.

Defendant testified he had operated the business for approximately three years without incident; that he had been checked by the office of the Louisiana State Fire Marshall and insurance underwriters; that several changes had been recommend*59ed, and these were made to the satisfaction of these individuals; that the tanks each contained four-ounce vents; that he purchased products from Texaco; that Texaco made deliveries about three times a week with their equipment and men, and the products were placed in the large storage tanks by the employees of Texaco.

We have been able to find only two cases dealing with the subject of whether the business of storing, selling, and handling liquified petroleum products is or is not a nuisance per se. These cases hold that it is not. Galouye v. A. R. Blossman, Inc., 32 So.2d 90 (La.App. 1 Cir. 1947), writ denied; and, Beauvais v. D. C. Hall Transport, 49 So.2d 44 (La.App. 2 Cir. 1950).

The jurisprudence in this State is that a lawful business cannot be abated as a nuisance, unless it is operated in such a way as to give rise to serious and material discomfort and inconvenience to persons living in close proximity thereto.

Defendant’s business is conducted some distance from the City of Crowley, Louisiana, and is in a commercial area. There was no showing that the trucks or their operators were noisy. Plaintiff’s home is approximately 150 feet north of defendant’s premises. There is another service station across the road or highway from plaintiff’s property. We agree with the trial judge that plaintiff has not carried the burden of proof that a nuisance exists in the present case so as to grant injunctive relief.

For the reasons assigned the judgment is affirmed at plaintiff’s costs.

Affirmed.

HOOD, Judge

(dissenting).

I am unable to agree with the conclusions which have been reached by my colleagues.

As pointed out in the majority opinion, defendant Shuff constructed four above-ground tanks within *five feet*of plaintiff’s property line. The tanks had a total capacity of 58,800 gallons, and they were used for the storage of 25,200 gallons of gasoline and 33,600 gallons of diesel fuel. Both types of fuel are volatile, and they give off highly flammable fumes.

The tanks were designed and constructed to be used only for the storage of crude oil, which is not volatile and which does not create near as much pressure as does gasoline or diesel fuel. A much stronger type of tank is used ordinarily for the storage of gasoline. Two of the tanks are ten years old and the other two were constructed at least nine years ago. Plaintiff bought them as used tanks and had them placed on his property in 1966. He has used them since that time for the storage of gasoline and diesel fuel. There is a dent in one of the tanks and some corrosion and rust on both of the tanks used for storing gasoline, all of which tends to weaken them and increase the risk of bursting or leakage.

The evidence shows clearly, I think, that the storage of gasoline in these tanks creates a constant and extreme danger to all of the surrounding area, at least to a distance of 50 feet from the tanks. Defendant Shuff, himself, testified that when the tanks were constructed, within five feet of plaintiff’s property, he placed signs on them warning that the contents were *“flammable and dangerous”*and also ordering *“No Smoking Within Fifty Feet.” A*part of his testimony to that effect reads:

> “MR. PUGH, JR.: Now, then, did you have these signs put on your tanks, saying flammable and dangerous ?

> THIS COURT: Now, we’re being repetitious, Counsel.

> MR. PUGH, JR.: Well, there’s one point I want to make, Your Honor.

> THIS COURT: Let’s get to that point.

> THE WITNESS: Yes, sir. I put them on the tanks because the — the State Code requires that.

> *60MR. PUGH, JR.: And you also put a sign on there: No Smoking Within Fifty Feet?

> THE WITNESS : Yes, sir.

> MR. PUGH, JR.: That applies to fifty feet going north ?

> A Either side.

> Q All around?

> A Yes, sir.”

By the construction of these tanks and the above-mentioned warning, therefore, defendant Shuff deprived plaintiff Hil-liard of much of the use of at least the south 45 feet of the latter’s land. Although the sign said *no smoking*within 50 feet of the tanks, that necessarily includes a warning that there can be no kitchen stoves, heaters, hot water tanks or even a candle burning within that area. It means that plaintiff could not permit an automobile, truck or tractor to be operated on the south 45 feet of his land. He could not risk the operating of a power mower to cut the grass in that part of his property.

My colleagues reason that plaintiff is in no danger because his home is presently located 150 feet from the storage tanks. They have overlooked the fact, however, that plaintiff had planned for his son to build a home on his property, between Hil-liard’s home and the tanks, but that the construction of these tanks prevented his son from doing so. It was necessary, in fact, for plaintiff’s son to acquire property elsewhere for his home.

The evidence shows that the south part of plaintiff’s land originally was ideal for a building site, but that the danger created by the construction of these tanks prevents the use of that part of plaintiff’s land for residential purposes or for practically any other purpose.

Two graduate petroleum engineers were qualified as experts and testified in behalf of plaintiff. They felt that the construction of these four crude oil tanks near plaintiff’s property, and the use of them for the storage of gasoline and diesel fuel, constituted a substantial danger extending up to 150 feet in all directions from the tanks. The danger, they stated, arose from the highly flammable fumes emanating from the tanks, which could be easily ignited by heat or a small flame at substantial distances from them, and which if ignited could cause intense fires and explosions.

Defendant called only one expert, and he was qualified as a “safety engineer on a consulting basis.” This expert conceded that he did not have an engineering degree and was not licensed to practice any kind of engineering. He is part owner of some gasoline bulk plants and a business which “sets them up.” It seems to me that his business interests might have some influence, unwittingly of course, on his views as to the safety of gasoline storage tanks, since he, as part owner of other gasoline bulk plants and a business which sets them up, may be vulnerable at times to suits like this one. But this expert also recognizes the danger of the gasoline storage tanks to the surrounding area. He observed, for instance, that defendant maintains a large fire extinguisher near the battery of tanks, that he noticed some corrosion and rust in the gasoline tanks, that Shuff has built a “fire levee” around the tanks to catch the gasoline which may leak out of them, that he was aware of at least two recent bulk plant fires, that the gasoline in these particular tanks does give off highly flammable vapors, and that these vapors could be ignited with a match at some distance from the tanks. He did not specify the distance from the tank within which the lighting of a match would be dangerous, but he stated, somewhat negatively, that he didn’t believe a match would ignite the vapors “twenty feet away.” Even so, of course, that would mean that plaintiff would be deprived of much of the use of the south 15 feet of his property.

In my opinion, this is the type of nuisance which Articles 667, 668 and 669 of our Civil Code were intended to prohibit. I think defendant should be prohibited *61from storing gasoline and diesel fuel so close to plaintiff’s property unless and until he constructs or provides adequate and safe tanks or storage facilities for that purpose.

For these reasons, I respectfully dissent.

ON APPLICATION FOR REHEARING

En Banc. Rehearing Denied.

HOOD, J., is of the opinion that a rehearing should be granted.

MILLER, Judge.

The dissent by Judge Hood raised persuasive issues, but the record does not show that the trial court committed manifest error.

Plaintiff did not complain when these tanks were erected. Plaintiff did not testify that these tanks interfered with his use of his property. He did testify that his son did not want to build next to plaintiff’s home, but his son did not give a reason for this decision.

The application for rehearing is properly denied.