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Yommer v. McKenzie - 255 Md. 220, 257 A.2d 138 (1969)

Rule:

Establishment of a gasoline filling station does not constitute a nuisance per se, but it may become a nuisance because of its location or manner in which it is operated.

Facts:

Plaintiffs, Harley McKenzie and Mary McKenzie, lived at Little Crossing in Garrett County. Their immediate neighbors were defendants, Dewey Yommer and Beulah Yommer, who operated a grocery store and gasoline filling station. The gasoline tank owned by defendants was placed underground in close proximity to plaintiffs’ residence. Due to the leakage of the defendants’ gasoline tank into plaintiffs’ water well, the McKenzies were unable to use their well water for cooking or bathing. Thereafter, the McKenzies filed a suit against the Yommers, alleging a nuisance. A jury ruled in favor of plaintiffs and awarded them damages. Defendants appealed from the judgment entered on the verdict, assigning as error the trial court's refusal to direct a verdict in their favor.

Issue:

Did the operation of a gasoline filling station with an underground tank that was leaching into the soil and water constitute a nuisance that would entitle the neighbors to damages?

Answer:

Yes.

Conclusion:

The Court held that the establishment of a gasoline filling station did not constitute a nuisance per se; however, the operation of such a filling station may become a nuisance because of its location or manner in which it was operated.  The Court held that although the operation of a gasoline station by defendants did not of itself involve a high degree of risk of some harm, the placing of a large underground gasoline tank in close proximity to plaintiffs' residence was risky because it was not a matter of common usage. The Court invoked the doctrine of strict liability. The Court stated that since there was evidence from which the jury could find that defendants' tank was the source of the contamination, the motion was properly denied. The judgment was thus affirmed.

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