# Petition for Writ of Certiorari — Miner v. Commerce Oil Refining Corp. (No. 451) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_0644%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1960 ## Text ILE COPY => a = BMV, Clerk o- IN 7 Hk Supreme Court of the United States: koporern Tras. Doe % ar Xu. 2 Wirrivs We Mistry Peats HE. No Pores, S Pane! PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT | peared < W: i, Site STS Sr Jevierhy rt ey tithe Vue ; Me ee Wis wrfioty tt ia * “4 ee i ( NbEnits 4 Naver SALV ATE bc Nien Qtes | tin el. Loves pete wie Av 1 Newport. Rhode DPsbuned \ me . Witrram €°. Pomean, Plt} ly | ist! al Piattk Toteder , Providenee 3. Rhode Psianed Oot Caunsel INDEX Page ONO oo oon tacee soc Mesa dice deck Wace cies Jurisdiction ...... EPL ete opt ere ie te de Mean dee aa eee IE RH NOI. eric Ges Sa ny chu Ganka eked s . Rule of court, statutes, and ordinances involved ———.- ean, REPRE RSP abi. AR Gu eR pe ee ED eS A. The Parties and the Pleadings ............ a B. Location of the Properties Invelved coe Ap phanls : C. The Corporation's, Proposed Refinery ........ D. Faets Bearing on the Validity of the Ordinances ccambincudnenmte tet eee beans Ss eres (1) Zoning and Building Ordinances and Amend- I No onc css Gwin wcnanee sis (2). Adoption of Licensing Ordinance ....... =. Pw . Facts Bearing on Whether the Operation of the Corporation’s Ptoposed Refinery Will Con- Se a i ee ee Ee ei Te (1) General Effeets of the Refining Process . (2) Hydrogen Sulfide and Mereaptans ........ (3) Likelilfood of NRE oe ks (4) Su.vur Dioxide 2.2.2.2... ile Esme aaa ie LS ee eee (6) General Refinery Odor .................. (7) Injury to Use and Enjoyment of Residential WEE Scat bere oxh wwe anes 68 Pease ees The Opinions and Judgments’ Below .......... Reasons for Granting the Writ .................--. NE <5 So os ak x ad ea rere etre to ] i Index Continued Page ine showing Jamestown no and adjacent areas; the re-, finery use district; the location of a rs’ homes; and the distances involved, .... following p. 41 Appendices [separately bound | Appendix A—-Opinions ag SENT Ce Rey epee Al (1) Opinion of the Distritt Court .........-.. Pred. (2) Opinion of the, Court of. Appeals ere eeees aeee AQT Appendix B--Judgments. below... 0. ..5..5 0.550226: Adi (1) Original Judgment ..:... ole ee Peay eames ALT (2) Order Denying Rehearing. .......-. : is Per i Adi Appendix C- Rule of Court, Statutes, and Ordinances IP PL seer are kr are eg ae .. ASS 1. Rule of Court ......-- Mohn ot tena any yams baat A4S8 2. State Statutes ..... Siete Ea Pele tee ES Ads 3. Municipal Ordinances ..........6-- rate nes a Ad? Appendix—Demonstrable Factual FE rrors in the Court of Appeals’ Opinion Moe eines One ee hs are ne eee Appendix E—The Rhode Island Law of Nuisances ... A5Y AUTHORITIES | References to pages preceded by ‘ A‘ are to the Appendices | Casrs: tidrich v.-Howard, S a) hae. Taney 38, Ad59, AGL, Ab4 oe rv. United States, 322 US. 665 000.0... 30 Berman Parker, 348 US eee ob eperees Pa Black & White Tart Co. vy. Brown & Yellow Tarr. fa, Fe A ED iS occacecesencdkwavemsbenecte® oo _—— — de rhe heson Va bee Barstow C Oo ° os) R. l. 19s, At. ot Mince ME rear Payee Oy Sa Ss 0, AGO, AG2- Abd ids. Bowd, 2 SONY, 42? 169 NUE. 6? Oe park 5a Brevot vy. Unite . Maglen Ca FO OR eck Aine bees 686 Brive RoCo, v. Tompkins, 204 UL. G4 2.0 34 Faclid vo Ambler Realty Co. 202 US, Btn ty. eee Index Continued iil Page Fish v. Dodge, 4 Den. 341 . ..... oo occas. »... AGU Graver Mig. Cory, Linde Co. 339 US, 605 20. do Kennedy vy. Frechette, 45 it 1. 309, 33 Ath 146.38, A509, A611, AGL; AGL A nauer vi United States, S25 U.S Sn EC re Oe 3 operV. Aleoa Sté amship €'o., 24a F | | | so) Oceanic ‘Ste am Navigalwuw Ca, vy. Watkins, 8S Fed. ssc GRRE ERO CLE EERO oe ree APY 1d R. 7. Home Buitde wee Vv. iit Rose Co., 77 Rel. Us: OO Oe BE. Sas ie ee KEN GS ois dene eel 33 Saunders v. Shaw » 2440 * MOO Gee eevee es a ee Vv. United States, B20 US. PEO ce ren oe) Sia Tne. ve. Ralston Purina Co. 67 R. I, +: 6, »4 Yd i ihe & MWR a a eee eel wie er oe ee x 3 BO: = 7 Bie ON, AG? Ped Slates Oregon State Me — Soc rely, 345 é U.S. i ) oe Se CS Sie Se A ae eh Eee CCUM Bow 6 mean Re wane e ck te 35 United States %. Yellow ¢ ‘ab Co, O88 TS 3 et cane 30 Universal Camera Corp. v, Labor’ Byard, 340 US, See 33.3 Kae ha pe RAKE Ae eT MCSE Coe eee 349 STATUTES: : Rhode Island General Laws, 1938: Cha 238"... eee he De end Pants they Re ae Be ADI di RE gS aaa atl tien One cel aaa et 13, 29, AAO Ng 8 TAR, A hi agh e M atie Sr ten hea 11, 28, .A48 i a oak fe Ee Rar aaa en REAM ACN a 8 eae 11, 28, A49 Rhode Island General Laws, 1956 § 23-261. eee Sag tt wie AOE Oe nae aaa ttc) oe os eae ADO. A5T Bn 2 a ES. REPRO seed h oes Pee Bs ee iccate 6ie acca tas eS 13, 29, AKO 5 an-ae-t te 40305 ee 11, 28, A48- A450 Rhode Tstand Publie Laws; : Cs Pe NE De Rig Wee ae Dee 11 Oa ene I te Eo et ay en ne ADO) Ch. 3223 of 1943 (1s ~t Spee, se Ase, SRE AE IE pote. VO} Sherman Antitrust Net (15 UuS.C. $$ 1-7, 12.15) a . iv , Index Continned MiscELLANEOUS : Page Federal Rules of Civil Procedure, Rule 52(a) ..... 3, 34, var ne eae | 37, A4S First Cireuit Rule 31 ..... 0... ee eee eee Pers ee ~ Ordinances of the Town of, Jamestown: Ch. XNXV ........-- DA SPOR a eee SoS ane Ad2 Ue Mae een eee Ce Tee Me OP aN ee AdZ . oe Baer. NA Sr gare are Oe ts ee Ad2 Payne, Reminiscences of the Rhode Island Bar, oe err ere rere ree Te ee ee itu ae Supreme Court Rule 23(1) (i) ..--.-- +. ++: Leqees 2 if 3 F_o IN THE ° Supreme Court of the Huited States Octosner TERM, 1960 _ No. Ww ILLIAM W. Mixer, Jous H. ° Porter, S. Baker W ILLIA M™, ET ALS., Perc rs, Vv. Commerce Ow Rerixine Corporation ‘PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT Wittam W. Mixer, Jouxn H. N. Potrer, S. Baker Winniams, ef a/s.. your petitioners, pray that a writ of certiorari issue to review the judgment of the United States Court of Appeals for the First Circuit, entered in’ the above-entitled ease ‘on June: 16, 1960. OPINIONS BELOW. ' The opinion of the district court denying respondent's motion for-summary judgment on pean eounter- claim (4 R. 419-426)! is reported at 22 FL R. D.: the Appendix Record consists of six printed volumes, separately numbered. “Vols. 1 and 2 are paged consecutively from 1f to 133st, Vols. 3-6 are paged consecutively from 1 to 1913. » / . . The Opinion of the district court on the merits (3 R. 50. S4; infra, Appendix A, pp. AL-A27)° is reported at 170 F. Supp. 396: The opinion of the court re low (Appendix A, infra, pp. A27-A46) has not yet been reported. . JURISDICTION The judgment of the court below (Appendix B, tefra, A47) was entered on June 16, 1960. A timely petition as rehearing was denied on July 6, 1960 ( Appen lix D. _ infra, p. A47). *Yhe jurisdiction of this Court is invoked ynder 2 U.S. C. § 1254(1). QUESTIONS PRESENTED Petitioners, residents of a small Rhode Island town, counterclaimed for an injunction against the respondent corporation ’s proposed erection of a largé oil refinery on two. inde ‘pendent grounds, ‘first, that its operation would constitute a nuisance, and second, that ‘the ordinances and license purporting to authorize its construction were in- valid. The district court granted petitioners relief on both . grounds, holding in their favor as to the second beeause permission to proce ed had been gr anted without a hearing. On appeal, the court below held that Jhere was no nuisance, refused to-pass on the validity of the ordinances and license on the ground that such determination was unnecessary to the disposition of the cause, and ordered dismissal of the counterclaim. , The first question is whether, by dismissing the counter- élaim without even considering the second ground which the petitioners asserted (invalidity of ordinances and license), and which was adequate to support the district ‘court's judgment, the court below so far departed from the accepted and usual ‘course of judicial proceedings as, to call , for review by this Court. 2 All of the Appendices to the present petition are bound sepa- rately, as permitted by Rule 23(1) (i). ~ 3 . On the nuisance phase of the case, the district: jude he avd many, days of testimony by expert witnesses on both sides. Thereafter the district judge wrote a ke nethy opinion in the course of-which he set forth his season for believing sofne of the experts and for disbelieving others. - The court below, with only the paper record before it, reached a different result on its own independent evalua- tion cf the expert testimony, while admitting that the evidence was in sharp conflict. 7 The seeon | question presented is whether by so déing the court below violated the standards preseribed by Rule 82 (a), F. R. Civ. P. 3. The Rhode Island law is that, ‘tto justify an injune- tion, * * * the evidence must show clearly and convineingly that substantial damage to the, complainant's property or business will be practically ceftain te result from. the operation by the respondent of the business against which an psig is sought.”? Weidner, Ine. vo Ralston Purina (o., 67 R. 1. 436, 451, 24 AL 2d 902,909, In this ease the tnited States District Judge for the District of Rhode Island, after stating the rule of that case, after quoting that passage, after expressing his ewareness of the burden of proof it imposed, and after considering all of the testi- mony, was ‘‘satisfied that the operation of the refinery in the manner and at the location proposed hy -the plaintiff will cause a substantial diminution both in the values. ef the defendants’ properties and in their enjoyment thereof as measured by the degree of comfort which the average - man Jiving in such a locality has the right to expect.’’ The court below said that ‘*it seems to us that the Supreme Court of Rhode Island would not sanetion enjoining the erection of the plaintiff's refinery.’’ The third question presented is whether’ the court below Was justified in substituting its own view of Rhojle, Island law over that of the United States District Judge for the District of Rhode Island in the light of his findings of fact and of the Rhode Island decisions on the law-of nuisances. i « te 4 RULE OF COURT. STATUTES, AND ORDINANCES . INVOLVED The rule of court, statutes, and cedbaeness involved are set out in Appendix C, wfra, pp. AdS-Ao2. STATEMENT This case arises out ‘of a controversy between respond- -ent, Commerce Oil Refining Corporation, hereinafter the corporation’’, turning on whether the corporation has been lawfully authorized to construct and-operate a large oil re- finery ona wholly residential island in Narragansett Bay, and on whether such construction and operation would un- reasonably damage the homes and the health of the peti- tioners, hereinafter ‘tthe residents’’. The questions ee sented by this petition involve the regularity of the proceedings by which the judgment of the nited States District Court for the District of Rhode Island, granting the residents injunctive jnd declaratory telief, was. re versed by the court below. , A. The Parties and the Pleadings The present action was commenced by the corporation, presently insolvent (see p. TO, afra), which filed a eon. plaint against the residenis seeking judgments aggregating $34,000,000. (4 R. 353-360), | The first count, which was based on diversity of citizen- ship (4 Re 3538-358), alleged that the corporation in Septem- ber 1956 reeeived a license from the Town of Jamestown to erect and operate an oil refinery inan area of the town zoned for such use, that the Tesidents unlawfully combined and conspired to harass, delay, and prevent the corporation from exercising its right to operate its refinery, and that to offectuate their ‘unlawful combination and conspiracy’ the residents formed and used an organization designated as Jamestown Protective Association. The corporation asked that the residents be enjoined from harassing the a corporation by suit ‘or by any other means, and asked for damages, against each of the 17 residents, in the sum of &500,000 plus costs and exemplary or punitive - damages. The second count (4 R. 358-560) alleged the same con- spiraey as a violation of the Sherman Antitrust Act, as amended (15 U.S. C. $$.1-7, 12.15), and asked for injune- ‘tive relief and damages, seeking from each of the 17 residents an award in the amount of $1,500,000: plus costs and a reasonable attorney's fee. . The residents—petitioners here—all live in Jamestown, although -not all are registered ‘Voters: there. They are, by occupation, ashipyard owner (4 Re 704), a letter: carrier (4 R. 689), a machinist (4 R. 698), a warehouseiman (4 R. 694), a registered nurse (4 R. 694), a school te: wher (4 R698), two housewives (4 Re TOL: also Virginia W. Wright), an age oneag broker (4 Re. 719), a a physician (4 R. os), retired fireman (4 R. 683), a real estate exeeutive (4 R597), a retired met ta spinner (4 RS TOL), two retired business men (4 R. 679, HNO), and two retired Navy eaptains (4 R. 709, 728). The residents answered (3 R. 18-22, 44-49; 4 R. 360-371) and counterclaimed (3 R. 22-40, 49-52). In their answers they asserted that the license on which the corporation relied was invalid, that the amendment to the Zoning ordinance of the ‘Town of Jamestown creating a refinery use distriet was invalid, and that the amendment to the Jamestown building ordinance whereby the corporation was excused from compliance with its terms was likewise - invalid. In their counterclaims, the residents alleged the inva- lidity of the Teense, the inv: validity af the zoning ordinance, and the invalidity of the amendment to the building ordinance, They also alleged that the valne af the homes owned by them would: be substantially reduced anid de- stroyvedd, amd that their homes wonld be rendered unfit and ane omforti able for enjoyment by the ereetion and ope ration s- 6 of the corporation's refinery, and that the refinery will constitute a continuing nuisance, In their prayers the residents sought a declaratory judgment that the license and the amendments to the ordinances were void, and also soucht injunctive relief against the corporation taking any further action under the license and under the amendments. In its reply to the counterelaims, the eorporation re- ‘asserted the validity of its license and of the ordinances (3° R, 40-48, 52-56). The corporation's motion for sum- mary judgment dismissing the counterclaims was denied (22 F. R. 1D. 5; 4 R. 419-426). When the case was reached for trial, the eérporation announeed in open court that it did not intend to offer any evidence in support of its claim of an illegal conspiracy by us residents (4 R. 485), and on the latters’ motion the complaint was dismissed, with prejudice (4 R. 408-411, 452-493, 454-445). Earlier, in seeking a dismissal withont prejudice, one of the corporation's attorneys had deposed that the corporation still intended to sue the residents if its refinery were not built: (4 R. 399-400). B. Location of the Properties Involved ~The town of Jamestown, Rhode Island, is coextensive with the island of Conanieut in lower Narragansett Bay, The island is a little over 9 miles long and is only slightly more than a mile wide at its widest point. Ite area is 9.3 square miles and its permanent population is about 2.000." CLA. opinion, infra, p. A384. The southerly portion-of the island, which is farthest away from the proposed refinery, is known as Beavertail. It is generally unoceupied and overgrown; on it are loeated | some deserted Government installations, an abandoned golf course, a small summer colony of little fishing cottages, amdoone vear-round resident on a singh farm. (2 Ro S74t. ST5t, 90S8-909t.) | The middle part of the island consists of an area ealled The Dumplings, where the most desirable summer homes are found, and where there are also a few year-round homes and an ebandoned fort: and of that part which is the compact residential area of the town, where 75 of the permanent population resides. This middle ‘portion of the island has a publie water supply and sewer system. (2 ROSTSt. Sst, Gost, 9Tot, 97H )8 . Both courts found (3 R. 72: tefra, pp. ATG, AB4) that Jamestown ‘is primarily a residential, resort and farming area, At the present time, ne industries of any kind are located thereon, and there are only relatively few business enterprises, such as retail shops, stores, gasoline filling stations and hotels. It enjoys considerable popularity as a resort area during the summer.’ During the summer season, the population of the island nearly doubles (2 Ro. USTt). ; The refinery use district, (see page 15. and map fol- lowing op. 41. both afray extends completely across the northerly portion of the island. The district eoyrt found (3 R. 72-73: cafra, p. AWG) that the area of this district, in Which the corporation proposed to ereet its refinery, is S14.72 aenes, of which GOLTL were owned by its and the remainder by other persons, ineluding 8 of the petitioners, who have homes within the boundaries of the refinery use district. ‘At the time of the trial of this ease there were sixteen (16) dwelling houses ine said distriet, one having heen destroyed by fire since September 27, 1956. [ Ex. 20, 5 R. 1425.) The remainder of the land therein is vacant. While a small portion of it is swampy and overgrown with scrub, most of said land is cleared and dry. Eighty-five per cent of it was described in the testimony as good farm land, suitable for farming or home sites, [5 R. 1052-1055, ‘The court below (ifta, po ASH) erroneously shifted the most densely popniated middle portion of Jamestown inte the largels Wnecenpied Beavertail area te the south. See Appendix D, infra,’ }P. ASS. * a 1496; Ex. O, 3 R. 256.) South of said distriet and about two miles therefrom are at least one hundred forty-three homes in the Jamestown Shores development, so-called, and to the north and within about one and one-half miles therefrom are seventy-one homes, a summer hotel and a camp comprising eleven or twelve buildimgs.*’ (3 R. 72-73 infra, pp. ALG ALT; see 5 R. 1490-1491, 1494.) ; ‘ “The defendant William W. Miner owns and resides on residential property which abuts upon the easterly end of said distriet. The remaining defendants are the owners and oceupants of ‘residential properties situated at points approximately two-thirds of a mile to four miles Away from said district. The properties of the defendants ‘Terrence: MeGaughan and Burgess Eunsford are located to the north of said district, and the properties of the remaining defendants to the south and southeast of said distriet. The homes owned by the defendants range in value from $4,000 to $50,000, Most of them, if not all, are substantially constructed, well maintained and attractively landseaped." (3 RL Ta, tetra, pe Ada.) They run. the gamut from small shore cottages,on small lots to large residences of comfort and elegance on many acres of land; seo pictures, 6 RL 1609-1869, See also 3 R218, 215, 235. The geographical relationship between the properties in- velved is shown on Bx. 22, reproduced” in facsimile following p. 41, ovfra, C. The Corporation's Proposed Refinery Pollowine the testimony on behalf of the residents, anel after introduetion of Ex. LIL. as the ‘‘complete: design’ “as of the present time’? (4 Re 658, 659-662), the eor- poration presented evidence of substantial changes in the design of its retinerw G3 RL 7. tfra;, pp. ALT-ALS: {1 R. 4980-02, OESt-ovEt, ONde-TOTts OR. 1268-12751). The district: judge said (SR. 74: aera, p. “AIS), “For the purpese of tay decision, TP shall assume that these changes have been made. But despite these assumed modifications, 4 the evidence establishes that the proposed “refinery will comprise, ameng other structures, at least fifteen stacks ranging from twenty to two hundred feet in height which will contain many thousands of feet of piping, countless joints and connections, nearly one hundred untired pres sure vessels of varying sizes amd construction, approxt mately four hundred pumps, thousands of seals and com pressors, tanks, he "ait exe penny bin and like equipment." [1 1. 497t, S23-528t; 9 RL 1os82-1385, | The Soil een to “refine forty-three thon: sand (48,000) barrels of Kuwait ernde oil each day in its’ refinery, slightly less than the total daily capacity of all the oil refineries in New England at the present time,” ORL 74 nfras po AIS: PER. Ott: 6 RL TS0bs es. MMM, p. 9 (not printed}]. ** The ernude oil te be refined will be brought by tankers from the Middle East to Jamestown. Plaintrl proposes to construct a danding dock off the east -shore of the island from whieh.the oif will be pumped through pipes to the erude storage area and then to the process units, (2 R. T440-745t; Ex. LI, not printed.4 The plans for the proposed refinery would seem to indicate that the ernde oil will be kept at all times in-an enelosed svstem from the time of its arrival through the completion of the refining processes."’ (3. R. 76-77: mfra, p. AZO; fT R. 4 dst, $41t; Ex. MMM, 6 R. 1687 at 1689, 1701, and TSO1 ef seq.) “The refinery will be operated twenty-four hours per day, seven days a week throughout the vear, with brief shut- downs onee a vear for maintenance and repair purposes, [2 R. 780t.]) The products to be produeed are high oetane vasoline, liquified petroleum gas (LPG), and heating fuel oils, By-products to he produced will he petrole Wm coke and elemental sulfur.’ (3° R. 74: otra, po ATS: [1 R. wet, l41t: Ex. MMM, 6 Ro at 1701, 1707, and Tsat-tsas?.) ‘Three types of processes Will be used to convert the erude oil into gasoline, LPG and heating oils," viz. distiilation, craeking, and heat treatment. (9 R. 74-75: imrre, Pp. AIS.ATO: [1 x. Uta |.) In the various stages of the above processes large quantities of hydrogen sulfide, gaseous hydrocarbons known as mereaptans, and sulfur dioxide -(SO_) will be produced, (3 R. 75: tefra, po ALO: [LE Re det, 4560, 441t, 444t}.) The district judge, after giving ‘full credence” to the corporation’s intention to use no fuel oils having a sulfur content in excess of 2's per cent, ‘and assuming that the sulfur reeavery unit will operate at all times to ‘its maximum efficiency,” found as a fact that ‘tit is clear that the minimal quantity of SO. to be discharged each das into the atmosphere will be thirty-seven tons." 05 R. 75 TO: infra, po AZO, f2 RR. WONT t 1251, M6St Pots Bs. BBBB, 6 R. 1901-1913].) ; “The evidence further shows that the plaintiff will draw large quantities of salt water from Narragansett Bay for cooling certain refinery units. The total-amount se used will be at least LOO)S00,000 gallons each day. After cir culating through the heat exchangers it will pass through a cooling pend and will be discharged inte the bay. In addition, process water used in the refining processes and water used to wash platforms, walks and other areas in the processing units, amounting to more than 2.000.000 callons each week, after treatment to remove certain hydroearbon compounds with which it has become contaminated ane after passing through an oxidation Pond will also be dis- charged into the bay together with storm: water aeenmn. - lating in the proeessing units and in the erude storage area.’ (3° R. 7; infra, p. AZ: [3 Re V71-1175, 1305- 1306].) The faety as to the results that would accompany the . ° . bad ; operation of the refinery are set. forth below under the nuisance phase of the case, jvfra, pp. U7228, - The reeord ‘establishes that. at*the time of the trial, the corporation was cinsolvent. having real “assets of S7T7TH691S.354 as aeainst current liabilities Of S2.0S1,736.79 * (Def. Ex. MMM. 6 -R. at 1741, 6 Ro at 1747, note’ (6)). OF fT it. ten directors (2 R. 762-7651), the only one who testr fel at the trial, Mr. Geller, was the one who for seme years had been “enaged in the development and promo- tien of the Company'’’ (2 R. 764t). At present, se petitioners are advised: the corporation does net have-any contract for the supply of crude oil-or any firm commitment for fin incing construetion.£ In aetual fact, the corporation has never during its entire existence yer ee refinery anywhere (RAL BY te Ex. Te, y It. he wm 141). D. Facts Bearing on the Validity of the Ordinances and License (1) Zeuing and Building Ordinances and Amendments thereto . The Town of Jamestown in August 1995 adopted a voning ordinance, -Tt was conceded that, sinee no notice of a hearing on its proposed adoption was given a» required by the state law then in feree CR. 1 Pub. Laws, 1931, eh. 762, later R. 1. Gen. Laws. 1938, ch. B42. $s band ’2, now Ro! Gem baws, 16, £8 45-24-17 to + N24, intra. pp. AFs- ADO) 2 this ordinance was invalid when the amendment now in question, Which created the so-called refinery tse distriet, was adopted in) September 1956 (4 R. 412417, $N3-484). ‘At the hearing defere the distriet court on Angust os. 160, on petitioners’ application fer a stay pending the tiling of the present petition see Oeeanic Steam Navigation Co. Nv. Watkins, Iss Fed wo ce AO 2. for the authority ia the trial court to grant stich a stay after the mandate-of the court of appeals has gone down. petitioners” connec! rade the assertion set ferth in, the Text, in response tee the demurred of the corporation's attorneys that the stay be conditioned on the viving of a bomd. They did net contradict that assertion. amd the distriet court ranted the stay Wothont requiring security ” “The 1956 edition of the Rhode Island General Laws had not heen putblished when this case was tried, 12 ao On June 29, 1956, the corporat. m applied to the Town Council of Jamestown (Ex. A-1, 3 R. 239-240) for 1, An amendment to Jamestown's zoning ordinance creating a ‘‘refinery use district’’; ° 2, An amendment to Jamestown’s building ordinance excluding refinery structures from the Town’s building code; and . | 3. An ordinance authorizing the Town to issue license- far the refining, manufacture, processine and ‘storage of petroleum products, : The corporation submitted proposed forms of these amendments and a form of noticé for a public hearing on the zoning and building amendments (Ex. A-2, 4-3, A-4. © R. 1546-7549). On Aurust 28, 1956, a public hearing was held in connection with the zoning and building amend. ments (Ex. 8,3 R. 106-164). The corporation submitted three forms of amendment- to the zoning ordinance (Ex. A-2, 5 R. 1546-1548; Ex. and E-1, 6 R. 1546-1560; Ex. F; 6 Ro 1561-1563): the last of these (Ex. F) was finally adopted (Fx. S. 3° R. 267-269; 4+ R. 446). The corporation resisted, on grounds of ‘spot zoning” a proposal to rezone only property for which it bad an option (Ex. BK, 6°Ro at TAd6-1558), and it characterized tas ‘unnecessary’ (PL Ex. 5. not printed in its entirety) a proposed amendment, drafted by the Town Solicitor at the direction of the Town Council, which would have permitted industrial uses in addition to refining in the proposed refinery use district (Fx. G, 6 R. 1563-1567; 4 Re 451-4955, 66-907, O70). The latter amendtient was not adopted R. 455). Incependent counsel retained by the Téwn of James town were joined by the’ Town Solicitor ino refusing te express any-opinion as to the validity or sufficieney of th: < proposed wnendment to the, zoning ordinance (Ex. and Ro 6 Ro TSS5-1997, at LaSO ame 1. ay . 13 One of the forms of amendment to the zoning ordinance proposed by the corporation was ultimately adopted by the Town Cogneil on Sept&aber 27, 1950 (lx. 8,3 Re 267-269; 4.404). This amendment created a refinery use district whieh straddled the northern portion of Conanicut Island, and contained more than 140 of the area ef the Town (Ex. AAAS GR. 1671, 2 Re sest, Seat, S69t-S7TOt). Of the S}4oacres in the refinery use distriet, tracts aggregating over 2O0 aeres are not owned by the corporation (2 R. S63t, SHOLSTUL). See atse po 7. saora. and map following p. 41, intra, : On September 27, 1956, the Town @ouneil also addpted the corporation's proposed amendment te the buildine ordinanee, which exeluded) relners structures) from the provisions of the building ordinance (4 R. 4642 lex. Tyo Re, OTUs Efex Ad A OR. 149). Tidependent. counsel retained hy the ‘Town, as Weil as the Town Solicitor, hal earlier advised the ‘Town Coaneil that the amendiment. te the building ordinance was of “tdoubttul validity" (lex. Qoand Rog Re DASS1S9D at Tost oand: bovd). (2) Adoption of Licensing Ordinance On the same day, September 27, 1956, the Town Council ‘also adopted ait ordinance which authorized the Town Couneil to issue heenses for the refining, manufacture, processing, and storage of petroleum products (lx, l-1, SOR, eTu-RTO: 4 Ro 464). As adopted, this ordinance did not diver materially from the drafts earlier submitted: oy the corporation (Ex. A, 3 Re 241-244), nor did it include any safeguards against air pollution as recommended by the Pown Solicitor and the Town's special counsel (Ex. Ry 6H ORoat TOSS and Tadd. 8 Re 2ow-Zob), This lidensing ordi- hanes, to the extent that it was, in stbstance and effect. a Iuilding ordinance, was not preceded by a public hearing as Was required in respeet of building ordinances by R. 1. Gen. Laws, 2038, eh 355, so2. now RL L Gen. Laws, 1996, SLUT intra, pp. Ao0- Nol. 14 Protesting parties were denied any opportunity to testify in opposition to the lice nsing ordinance at the Town Council meeting at which it was adopted (lx. 15, 3 R. at 200-202). “Tmmediately after the adoption of the ordinancé, the cor- poration’s attorneys. presented a licensé application (Iix.. DD, 3 R. 37-40), after’ which, without farther discussion except to waive the requirement that the corporation file its plans with its license application (Ex, 15,3 R. at 202), the license (Hx, DD, 3 R. 314) was issued. The record shows that the public Town Council meetine at which the licensing ordinance was adopted and at which the license was issued had been preceded by a meeting of the’ Town Couneil in executive session, at which the procedure to be follgwed-at the public meeting was deter- tnined (4 R. 480). At this executive session, held at 7 PP. Moin the Town Clerk’s office (3 R. 199), the town's. attorneys for the first time, at 7:15 P.M. presented a form of licensing ordianee (4 R. 576), which had previ- ously been approved by the corporation's attorneys (Bw. R, 6 Re at Toss). The corporation's application for a license (ox. W, 6 R. 1501-1504) and the proposed license: (lex, DDS Re 314) were also considered at the executive session (4 R. 481). At that sessien, the Town Council also had before it typed resolutions moving adoption of the licensing ordinance, waiving the pogire nt under that ordinance (g$2(1), Dory, 2Ch), BOR. at 27E-272) that the license applicant first file plans, amd granting the corporation’s license applica tion (4 RL 48S, S76). | The meeting then adjourned to the Memorial Town Hall and Cotmuunity Cegter oa different building (4 Ro 477) and reconvened in public session at 8:30 PL ML (3 Re 199). The Town Clerk brought with her to the latter meeting the ‘Tawn's seal, as she hisvcl previeusly been directed to do by the ‘Town Conneil (4 Re 482). 5 ° eo Here are the pertinent: passages from the minutes of the public Town Council meeting (3 R. 201-202): ‘Armbrust | Member of Town ¢ ‘ouneil|: LT move we pass this Ordinance as read. “Seconded (Brooks | Member of ‘Town Council! ) “Voore [Counsel for Residents! : May we be heard on the question of this Ordinance t there has been ne hearing ow this: Ordinance. . As taxpayers and rest dents of the town we ask the right t be heard. We Sassupie vou Wish te satecuard the health of this community. “We are prepared to offer testimony which will point out to you the vital defect “oe this draft of the Ordinanee: and. Pe venture to say after you hear this evidence vou may wish te withdraw and redraft this ordinance. “Gobeille [President of Town Council}: It is vhs feding of the majority of the Council that we have had the advice of a verviecompetent engineer and very competent Counsel. We lave their advice to us and weoare followimg it. We would not change from their advice. We feel we should go ahead with our course of action as outlined, Moore: | would expect, of course, that vou would follow the advice of vour tvounsel and your expert, but certainly the residents of lamestown Whom we represent should he heared. The residents Whore we represent have testimony te offer vou based on this very draft of the Ordinanee. : “Gobeille: The Council feels they have listened enough, They would like to get on with their action. Murray [Counsel for Corporation? : May | sulynit that at the time vou draft an air and wafer pollution ordinance Mr. Moore be asked to submit his evidence, ‘(At this point, Mrs. Tollefson fa resident and voter of Jamestown] tried to get the floor) “Cobeille: The Council has not given pertission for anyone to talk. We. would like to get on with our action. 16, “May we have the vote? So Voted. ‘“Gobeille: We have before us an Application for a license to permit refining, manufacturing and proc- essing of petroleum, petroleum products, ete. (Quote Application) | ‘Armbrust: | move that the license as requested be granted; with the exception that the Council ‘reserve the right to request compliance therewith when said plans and speéifications have been prepared. ‘Seconded and so Voted. “Murray: bE have here a certified check endorsed to the Town Treasurer, Town of Jamestown, on the Chase National Bank for $5000.00) in) payment for the leense, | Meeting adjourned 9:05 PLM. “Quinn [Counsel for Corporation|: We wish *te thank vou very much tor your tolerance over many, many trving weeks; we are deeply grateful fob the license vou have issued this evening.” The record indicates that underlying the Town Council's haste witgggdeadline imposed by the corporation (Ex. 13, BR. AST at 192-193; 4 R. S8U-581: 5 R. 1443); “Sit had to he October Ist, no other date * ** if the deadline was not met, then the oil refinery woyld not come to James- town" (4 R. 581). In consequence, the licensing ordinance was “thastily prepared’? (Ex. R, 6 R. at 1587). ‘ Prior to the adoption of the ordinanees and the issuance of the license, the corporation undertook to underwrite the fees of counsel” and of an engineer whose services would ber quired in the drafting of the necessary ordi: nances (lx. HG R. 167, 168), and thereatter the cor poration promised to help out the ‘Town in the event of litivation involving those measures (4 R. 580). ® Por special counsel's bill for professional services in connection with-all three ordinances, see Ex. AA, 3 R. 279-283. i Throughout the litigation, the corporation relied on thy ordinances and on the license, See Comptaint, Count 1, $4 R358; i. Count H, 1, 4 Re sos; arscunent on pre duetion of documents, 4 R. oe1-3ee. P The record discloses, what is the tet. that bet ore the corporation was able to obtain from: the “Town of hatties towathe amendedaordinances apd license en which it relied as authority ty construct its refinery, it had seusht similar permission to. construct: that installation in othe ‘Teiwn of Portsmouth. The latter towi. is loented) in the morthern portion of the tsland of Aquidneek, whieh Ties to the east of Covanieut Island, but also in Narragansett: Bay (ly. Ms; 8 OR, O48, BAL, 242; Es. KK, GR. 1975, Taed). E. Facts Bearing on Whether the Operation of the Corporaticn’s , Proposed Refinery Will Constitute a Nuisance (1) General Effects of the Refining Procéss The court below said (infra, pp. A86-AST): *<'There can be no doubt and ineleed it ts freely conceded by Commerce that. substantial quantities of malodorous, cand in sufficient concentration, toxie, ““ases ‘are: generated in the process of refining jerude oil, partioularly Sseur ‘erndes® such as those frem the Shiekelom of Kuwait) which Commerce intends to process in the refinery it proposes to build in Jamestown: These gases are hydrogen sultide (12S) and a group of gaseous hydrocarbons cabled: mer captans. Furthermore the stacks carrying the exhaust from the various heaters essential te the refinery: process Te # @ To might say that, as alleged in our complaint, the Commerce Oil Refining Corporation received its permit: to ‘build a retinery on September UT 1050, wo that Pam net ashing any thine prior to that date because T don't think we had any rights prior to that date. * ® * TL beli¢ve they should be limited as to time because the permit was granted on September 27, Ton Xs I have stated to your Honor before, the plaintitt doesn't elahu any Tights prior to that late.’ Is will discharge substantial quantities of sulfur dioxide (SOz) into the atmosphere This gas is not peeuliar to the operation of a refinery but, as a product of combustion, is present in varying degrees in most smokestagks. It has ° the odor of burned sulfur matches, is deteetable by its odor in concentrations of 2.5 parts per million parts of air by volume and on constant exposure ts deletertous to health in concentrations of 5 or Iuore parts per million of air by volume, a , ‘ (2) Hudrog nw Sulfide and Mercaplans Continuing the quotation from the court of appeals’ opinion: “We turn our attention dirst te hydrogen sulfide and mereaptans.” In accordance with general cominereial prac: tive about 12 of the sulfur in the crude oils Commerce proposes to refine will be removed in the form of hydrogen sulfide prior to shipment from the Middle East by a process known as stabilizations More ef the sulfur will be eon- verted in the course of the refining: process into hydrogen sulfide and the residue will remain in the final produets of the refinery. The hydrogen sulfide given off by the erude oil during the refining process will, according to Commeree’s plaa, be ‘converted into odorless, elemental sulfur by a. process which is about 96° -eflicient. The. re- 2 , * Estimated at a minimum of 37 tons a day by the district judge (3 R. 7H. 80; inira, pp. A2ZOl AZ) see record references eited above, p. 10. “According to the district court (3 R. at 75; rnfra, p. Ai9,), “Hydrogen sulfide is a particularly malodorous gas described as having an odor Hike rotten eggs and ds being deteetable in’ very low concentrations, Tt is highly toxie and in sufficient econcentra- tiqns injurious to health. Another inevitable produet of the refin- ini processes Is the prodietion of a group of gaseous hydrocarbons known as mercaptans. These are likewise particularly obnoxions and are de tectable by stnell in-extremely low concentrations. ' The eourt ‘of appeals did net dispute the foregoing character- IZUTION». i maining hydrogen sulfide will be incinerated and dis. charged into the air as sulfur dioxide.” *Mereaptans are produced at various stages of the refinery process, In Commerce's operation some will Te converted into hydrogen sullide, whieh will he treated as deserihed above, others will be removed by a eaustic wasty treatment and incinerated and some will be converted into hydrocarbons and form part of the gasoline and heating “oily produced.”’ One basic gifference between the parties at the trial, and between the district court and the court below on appeal, was Whether the corporation's proposed refinery was likely because of accidents or otherwise to discharge unhealthy gases and unpleasant odors on the residents’ properties, to their injury and discomfort, The distriet court found (3 Ro at TO-SO; catra, po N25), “Here it is undisputed that obnoxious gases such ws hvdrogen sulfide and mereaptans will be produced ino the refining processes, While the plaintiff contends that there Will be no eseape of these etses and cites the deviees and procedures it: will employ -te contain them, neither: the record nor the testimony of their experts sustains this contention. ‘The most that cam be said) vor sated deviees ” and procedures is that they will be nearly completely effective under the most ideal eonditions. But. having in mind the highly corrosive qualities of Kawait «rude oil and the volume of erude oil ‘to be processed each day, | am satisfied that varying quantities of these obnoxious gases Will find their way inte the atmosphere at all times when the refinery is in operation. To cassume that: they The distriet court founmd oS Ro at Té: infras po A2O> that, “When combined with water or moisture int the atmosphere, SO. becomes converted inte sulphureus acid whieh tn turn may be vonverted ints subphuric acid. These acids are highly Corrosive to iron and steel and gre destractive ef plant Jife.” 2) will not be carried by the prevailing winds beyond the relatively small area upon which a refinery of ‘the size contemplated is to be located would be tar from realistic. On the contrary, the credible testimony in this case estab- lishes that said xases will be carried by the prevailing winds at all times’ to the properties of some of the-defend- ants, and, because of their extremely disagreeable odors - in very low concentrations and their cumulative effect, they will seriously diminish ‘both the value of the defend- ants’ lands as residential properties and the enjoyment ~thereef. The same observation may be made with respect to the general refinery odor described in the testimmony as heing an inevitable incident to refinery operatién ** The eourt of appeals noted (p. A387, mira), thac “*No witness, of course, could say how frequently aceidents permitting the escape of these gases in substantial quantity would be likely to oceur.”’ The court of appeals went on to say (p. ASS, rfra), ‘Furthermore, assuming that accidents resulting in the discharge of these gases will occur in or near‘the center of Commeree’s processing area, it ix clear that if the wind at the timre were blowing from any direetion between north- east and south, the gases would not be carried onto the property of any defendant but out over the waters of the bay.?"! The court of appeals had varlier roted (p. A3S5, Gefra) that **The prevailing winds over ‘the island are from a we — westerly direetion.”” Phe district court’s tindins “(3 Re at 73; infra, p. AIT) had been more specifie—and more accurate (see Appendix Dat p. Add, mfra): The evidence establishes that) the prevailing winds on the ' The map of the isand and of the residents’ properties, infra following p. 41, Shows that a wind blowing from the south would certainly earry the gases te the homes of the petitioners Lunsferd and MeGaughan.* See Appendix D. tfra, p. Add. = island are from the southweet and from the northwest. . Wind velocities during at hast a third of the vear range from ealm to fourteen miles per heur and foes of varying duration enveloping the island secur with relative fre queney.”” : | (3) Likilihood of Mecideuts There was substantial unanimity amon: the experts on hoth sides as to the likelihood of acemdents in oil relmerys operations. ; Dr. Brooks, a consulting chemist (1 R. 122t-125t) ealled on behalf of the residents, testified that none of the pree esses in the corporation's proposed refinery plans were 1006 effective, that “tere is always the possibility of. accidents of one kind or another’? (1 R.235t). Accidents invelving the escape of odors, gases and smoke are ‘tinevi- table’? CLR. P36t) and ‘thevond any planning to prevent. They happen’ (DR. 18Tt): The designers do all they can. But it is in the operation ef the refinery and its equipment that these accidents are inherent and inevitable beeause of the ceneral nature and hazardous mature of. the Khiale refinery business’? (1) RL D4t-bot). St bm faet, accidents | one. kind or another are imevitable, amd beenuse of the inherent hazards of the oil refining business, Prem: hein nine to end’? (1 Ro 19tt). tit is imevitable from the very pature of the business, in spite of the best safeguard. that can be eonceived’*? (1 Re Tet). Dr. Schutt, a consulting engineer (PR. Tot) Re Pst) called on behalf of the: residents, deseribed refining as a “hazardous manufacturing operation’’ (1 Ro. 2ISt-21%r). Mr. Sutherland, the enginéer who supervised the desisn of the corporation’s proposed refinery CL ROaTSt soit), wimitted that ‘th don't think von can ever leave ont the possibility. that leaks will eeeur’’ (PR. SOOT). and that (UR. Agat) Haman failure or human accident can occur red cloes oeeur, all the tine. * * * three life 1 bn lheve aceidents, and so forth happen.” Dr. Brooks testified as follows as to the effeet of acel- dents (1 R. I4ot): “(Q. May there be anything in the operation of a refinery which would give an increasing odor to the atmosphere after some months ot operation? A. That woes to the question of human’ fallibility somewhat and the inevitability of accidents of various kinds. And if erude petroleum or any of these concentrated malodorous materials are for any reason spilled, their. odor can be and is carried by the wind. And the more of that sert of thing that oecurs, the day-to-day atinos- pherie pollution with respect to odor becomes more or Jess permanent and cumulative. It is sort ofa cumulative effect. “The refinery might get along for some months with- out any accidents of that kind or any spinage or leak- age of malodorous material, but when it occurs it isn’t always easy to clean it up or stop it. Se that as time woes on that «ffeet ‘may be cumulative and become creater.”” > The district court found (3. R. 79: infra, p. A283) that “While the plaintiff contends that there will he no escape af these gases and cites the deviees and procedures it will employ to contain them, neither the record nor the testi- mony of their ¢Xperts sustains this contention, The most that ean be said for said devices and procedures is that they will he nearly completely effective under the most idea conditions.” Notwithstanding Dr. Brooks’ -testimony, quoted two paragraphs above, the court of appeals concluded that (p. ASO, infra) “the testimony is convincing that any gen- eral refinery odor remaining -after an accident could be quickly eliminated oy prompt and thorough cleaning of the area affected.’ (4) Sulfur Dioxide The distriet court-found (3 RL SO-S81: pp. AZ38-AL4, tata): “Insofar as SOs is concerned, it is abundantly clear that at least thirty-seven. tons thereat will be discharged) into the atmosphere each day. Et is undisputed that this mal- odorous was ix detectable by smell ina concentration of 2.9 parts per million and that in concentrations of more than tive pirts per million ‘it has an irritating effect of varying degrees, depending upon the health of an individual and the length of his exposure to it. Im answer te a hypethet- eal question which included no reeital ‘of the.volume of SO. to he discharged frem ‘the stacks of the proposed re- finery, an eXpert witness for the plaintiff testified that the vround concentration of SQs at a point bevond the nearest property line of the defendant Froberg would not exceed G4 parts per million under the most unfaverable coud tidus, and hence its presence ies Lnot be detectable on his property or bevend it. [tT Re 6llt-ot4t.! Under cross examination, however, this same witness admitted that he could not deterinine such ground concentratfons: withou Knowledge of the volume of SQ: that was being emitted Tn the stacks, [2 RL 1S87t.! Tis opinion as te ground con- centrations of SQ. is in mv judyement entitled to no wereht. ‘The credible testimony satisties me that, depending tpen atinosoheric conditions, wind velocities, and the preyailing winds, as shown by the evidence of past annual weather conditions on the Island of Jamestown, there will be fre. (uent concentrations of nals on the property of the delend ant Froberg in excess of 2.5 parts per million, and that it is reasonable to conclude ‘that thie properties of the other defendants will be frequently visited with similar eon- centrations carried to the premises by the prevailing winds, end that these ecpicent ations will serve to effect a sub- stantial diminution in the values of their properties and In the enjoyment thereof” The court of appeals undertook Cpp. AFO-A4T. atra) te believe the witness whout the district judge had diggclieved ae | . ° on the grounds quoted above, and while admitting (p. A40, infra) that **The court's finding, however, has some foun- dation in the testimony of three experts’’, made an inde- pendent evaluation of the expert testimony to conelude (p. A41, infra) “that accepting the results of the formula there would be detectable .coneentrations of SOz on the .Froberg property only for about one hour in every 720 hours, or for somewhat less than one hour in every period | of four weeks”’ (5) Injury to Health The district. court found that sulfur dioxide (8 R. 76: infra, p. A2QO) “tin concentrations of more than five parts per million has an irritating effect upon the nose, throat and eves. The extent of its irritant effeet depends upon ‘the length of one’s exposure thereto, Tf the exposure be for only a few seconds, its effect may be only to produce tears. [f exposure be prolonged, engorgement of the blood vessels of the eves and irritation of the nose and throat result. In persons suffering from respiratory ailments or heart disease its effect is to aggravate such ailments and diseases and produce added discomfort.” This finding rested on the testimony of Dr. Leonid Snegi- reff, Associate Professor ef Caneer Control at the Harvard University School of Public Health ( R. 920-055, 950-951, 956-960. 5 R. O6L-1O13, 1016-1082). (See also this witness’ testinrony to the increase in lung cancer to be anticipated fronr petroleum refining in the area. 4 BR. 958-959.) There was also testimony by Dr. Wilhelm C. Hueper of the United States Public Health Service regarding the carcinogenic agents present in hydrocarbons that are waste products of oif refining (4 R. 870-912), but the distriet court made no findings thereon. Theecourt of appeals recognized (p. A386, infra) that the casts which the Gorperation’s proposed refinery would ven erate Were ‘tin sufficient concentration toxie™’. ea j . (6) General Refinery Odor The experts on both sides were agreed that the plans of the corporation's proposed refiners contained: te prrene esses or units that were new and net psed in other re finerties (POR. 132t (Dr. Brooks): 1/R. 219r-2vOtr (Dr. Sehutt); 1 Ro 51zt (Mr. Sutherland)). Mr. Sutherland. the designer of the corporation's proposed refinery, testi fied that its ali-inclosed system was not new, that the systems of most if not all oil retineries were similarly inclosed (1 R. 522t). _ *The reeord shows that at least two features of ‘the corporation's refinery, beth of whieh are odor prodieiny, . would not be closed. - The firs: was the oxidation tank, which must be open, and whieh causes odors (1 Ro 2461 247t); the second was the eoke storage area (Def. Ey. XXX, 6 Ro IST? [upper right-hand corner}), Petroleum coke is the end product of the comearsion of residual stocks (2 R. 1023t-1u24t, TO27t 10351). and petroleum: coke: has a distinet smell (2 Ro 1027t, 106). No less than four experts testified that odors are norma! and inevitable in; and inseparable from. refiaiue opera tions, , (a) Dr. Reiman, a consaltant in chemical ‘eng: eoering (1 R. SSt-61t), testified that offensive smells are eertain to be present within an arca of three er four miles from the corporation's proposed refinery, and that such oders are not Separahic from the retintny proeess (1 KR. S61 ast). On eross examination, be said (1 Ro 118t). A refine TY always. has a smell,” and when counsel for the corporation countered with **You said that vesterday,’* Dr. Reiman replied, “Tam saying it again today (bh) Dr. Brooks, a consulting chemist (1 Ro 122et Tear) testified that oders are normally created ino the refining process (1 R. 132t): that the escape of odors even inion oe mat) modern and well-operated refinery, is) inevitable (1 R. 13st); and that as time goes on, the odor becomes ‘*more or less permanent and cumulative’? (1 R. Mot). (ce) Dr. Sehutt, a consulting engineer (1 R. T95t-19st), stated that there is a general refinery odor created during the refining process, caused by minor or more: serious leaks, which can happen because of the multitude of con: nections: that these odors would be present in magnified form when a sour ernude is being processed: and faat these odors are perceptyble dveeward efea refinery for several miles (1 R. 219t-220t). cd) Dr. Hneper, an officer of the United States Public Health Serviee (4 Ro STU-S74). said (4 RooS77)) that refineries ‘Shave an odor all right. You can pick that up every nicely if von travel by train between Philadelphia and Wilmington. When vou pass Mareus Hook, you smell that all right.” ee The district court found (3. R. 72-80; refra, p. A238) that, ‘having inomind the highly corrosive qualities of Kuwait ernde oil and the volume of crude olf to be processed each dav, Tam satistied that varying quantities of these obnoxious gases will find their way inte: the atmosphere at all Games when the refinery is in operation. To assume that they will not be carried by the prevailing winds bevond the relatively smatl area upon which a retinery of the size contemplated is te be loeated wonld be far from realistic.” The distiet court eoneladed that ‘the general . refinery odor deseribed in the testimony iis heing an inevi talde ineident to refining operations,’ would, like the other enses, “serieusty) diminish both the valne of the defend ants’ lands as residential properties and the: enjoyment thereof.” en The court of appeals, in a passage too jong for full quotation (ifra, pp. ABS ASO), minimized: the possibility both of accidents and of general refinery odors. PS o ~t - (7) Tngury to Use and Enjoyment of Restlential Property Two real estate experts with long experienee (1 °R. Vyst-l74t. SUSt-ozit), Messrs. Hurley and Milton, testified that the presence of the corporation’s proposed refinery would render the properties of the several residents, par- ticularly those closest to the refinery, ‘tunfit for the com- fortable enjovinent of life’? (1 Re 285t) and ‘practically destroyed as a residence for people of normal sensibilities’ CPR. 839t), adding that some of the properties **would be practically aanihilated as far as value is concerned’? (1 R- JTSt, 27M, BVO). See, generally, TR. DT4t-LSNt LR. S26t- Alt. 2 On cross-examination (1 R.354t) Mro-Milton testified : “XQ. Dil vou hear Mr. Hurley say that the value, of the Niner property: would be annihilated? AL Yes, 1 did. “NQ. Would von agree with that? A. T would, ves, That is directly across the road from the refinery and certainly it would have ne value as a residential property, With a refinery across the street. "XQ. Would it have any residual value?) AL Thefe may be a practical basi® shelter value left there. but not to persons of normal sensibilities, The Witness: A bare shelter-is a place to exist, In my opinion and not enjoy life. LT think a home, a residence, is a place to have the comforts, enjoy life, health, and happiness with vour family." One of the corporation’s real estate witnesses stated on cross-examination (2 Ro Osa), “Tf it is constant, and they are living with this odor constantly, once a week or-onee a day or once every , two weeks, TP would think it would affect the vadue of itves. TD think—let me correet that. T'think it world” affect their enjoyment of the use of their property. Dr. Reiman testified as follows on this issue (1 R. St): “Q. Doctor, as a result of your experience and . observations, do vou have an opinion whether or not 28 > the operation of this refinery will have any effect on the desirability of feal estate in the neig&tborhood thereof * * * for residential purposes? ‘“*A. Well; I.could answer you very easily on the desirability by saying that I wouldn’t want to buy -property or own a house within the 3- or 4-mile range” of the refinery.’’ iin iy During the course of the trial, the district judge,. ac- companied by counsel for both sides, -went to Jamestown and viewed the premises of all 17 residents, petitioners here (5 R. 1052-1055). Following the close of the. trial, the distriet judge said in his opinion (3 R. 83; pp. A26-A27, fra), ‘After a careful consideration of a! the testimony and the reasonable inferences to be drawn therefrom, and recognizing the right of the plaintit? to make a reasonable use of its lands, IT am_ satisfied that the operation of said refinery in the manner and at the location proposed by the plaintiff will eause a. sub- * -* stantial diminution both in the values ‘of the defend- ants’ properties and in their enjoyment thereof as measured by the degree of comfort which the average man living in such a locality has the right to expect. It foilows that such use will be unreason:ble and hence a’ nvisanee to the defendants against which they are entitled to injunctive relief.’’ ) F.,. The Opinions and Judgments Below . The district judge held’ (3 R. 61; tufra, pp. AS-A6) that the amendment to ‘the zoning ordinance, which provided ‘for the creation of a refinery use distiect, was void because the basie zon ng ordinanee had not been validly adopted, and that, evens if the amendment had been interided as an original ordinance, it, would) be veid because not approved prior to adoption by a financial town meeting of the Town of Jamestown as required by R. 1. Gen. Laws, OS, ch. 342, $8 1 and 2, now RK. J. Gen. Laws, 16, $$ 45-24-19 to 45-24-5, tn fra. pp. AFs-A50. a. The district judge held (3 R. 61-64; infra, pp. AG-AD). that the amendment to the building ordinanee, which exempted oil refineries from all of the provisions of the Town's building, code, was invalid because not conducive to the conservation of health, safety or welfare, and hence outside the scope of the ages power, citing Euclid vy, Ambler Realty Co., 272 U.S. 365, 387." The district judge held (3. R. 64-70; infra. pp. A9-A14) that the licensing ordinances, whieh admittedly was adopted without a hearing, was similarly invalid, beeause in sub- stance it was a building ordinance which under R. T. Gen. Laws, 1988, ech. 333, §$ 32. now R. 1. Gen. Laws, TOK, - ST Cutra, pp. ASONSL) requires a publie he aring preceded bY notice as a prerequisite to adoption, Since cer. tain sections of: the void ordinance, 3(a) to 3¢h) ine lusive, were intended to control the manner of construeting and equipping the refinery, and = since the intention of the Town Council would not be served by the remaining por: tions of the license ordinance, which would leave the con strnetion of the refinery without controls, the district judge held that the entire ordinance would fail rietwithstandine the presence of a separability clause. Accordingly, he held that the license was also invalid. In respeet of the alleged nuisance, the. distriet jndes made detailed findings of fact (3°R. 72-83: infra, pp. ATF AZ6), Most of which have already lee ‘nh quoted or sum taartzed above, pp. S1O, 120, 21-26) and then conelucked _ With the ultimate finding (3 R.S3; infra, p. Az6), (poted ‘at po 28. te the effect that fa it “Tam satisfied that’ the operation of said refine ‘ry ine the manner and at the location proposed hy the plain- tiff will cause a substantial ditninution both in the “The Town's special counsel, joined by the Town Soliewtor® had earlier advised the Town Connell that) the preposed building erdinanee was of doubted vabiting Ex. RL 6 RR. Dos6 at 9559. ed 30 values of the defendants’ properties and in_ their enjoyment thereof as measured by the degree gf com- fort which the average man living in such a locality has the right to expect.”’ ~ Accordingly, the Distriet Court entered. a judgment (3 Ro 84-85) declaring void the three ordinanees and the license and enjoining the corporation from: taking action. under. the ordinances oF license, and also enjoiming it from — operating its proposed refinery in the Town of Jamestown, onthe ground that such operation would constitute a nuisance, The corporation appealed (3 R. 87). On appeal, the court below held (pp. AS3-A34, titra) that ‘*Sinee, even if valid, neither the plaintiff's lkeense nor the amendment tor the local zoning and building ordi- nances would provide the plaintiff with a defense to the charge of constructing a private nuisance, it follows that there was no need for the court to pass on the validity of the ordinances, for decision of that matter was unneces sary to its disposition of the case.’ The court below then (pp. ASS-A41, infra) undertook a reexaminatior of the expert testimony and of the eredi- bility of the expert Witnesses p. see \pp. 19-26, . above. On the strength of its reading of Seidner, Inc, v. Ralston Purina Co. 07 R. 1. 436, it said Cp. A46, tra), “it seems to us from the Seidner case that the Supreme Court ot Rhede Island would not sanction enjoining the erection of the plaintiff's refinery in Jamestown. Instead, on the relatively even balance of the sharply conflicting expert testimony in the record before us, we think the Supreme Court of Rhode Island would wait to see whether the refinery constituted a nuisance when put into operation.”” 31 The court below then remanded the case for entry of a judement dismissing the residents* counterclaims in their entirety (fufra, pp. A46-A47). Ina timely petition for rehearing,” the residents argued, inter alia, that (Pet. Reh. 1, 5-11) ¢*The Opinion of this Honorable Court) Failed to Consider and Determine Whether Defendants Are Entitled to That Portion of the Relief Granted by the District Court Independently of Is Decision on Nuisanee and Based on Its Declaration That Certain Ordinance Amendments and Plaintiff Appellant's License Are Unvalid.”’ The petition for rehearing was-denied (p. Ad, tfra). REASONS FOR GRANTING THE WRIT This Court, litigants have frequently been admonished, is a court of law and not of justice. Tf, therefore, the essenee of the present petition were simply that, by rea- son-of the judgement of the eourt of appeals, a presently insolvent corporation will be permitted, ino a completely amd traditionally residential area, to proceed with) the construction and operation of an immense and particularly noxious off refinery, an installation which on the evidences would be “an ugly sore, a blight on the community which robs it of eharm, «chich makes it a place from which men turn’? (Berwan ve. Parker. 8348 TLS. 26, 82-88), these seventeen individuals might well hesitate to invoke the aid of this Court. to save their hemes from being trans- formed into bare shelters. Where, however, as in this case, the harm thateis’about to he visited-on the petitioners flows from a disregard of hitherto unquestioned rules of kaw, then, we submit, the Me dudyment of the court below was entered on sdune 16, THe tufras py NAT). the residents” petition: for rehearing Was filed on Salty DVO rhe This was within the 14-day period allowed by Rale 3) of the First Cireuit for the filing of a petition for releariny, ao . ~~ persens facing spoliation may properly seek review—and redress—here, For the court below, in reaching the result of which these residents complain, has struck down anid distaissed without consideration substantial grounds amply adequate to warrant and ihdeed require the relief whieh they sought and were granted at the trial, and has more- over, Without seeing or hearing the witnesses, reevaluated a mies of highly technical expert testimony contrary to. the conclusions of the experienved trial judge before whom it wax adduced during a trial that lasted for over forty court days. It is these wholly unwarranted departures from, it ix this utter disregard. of, settled rules of judicial! administration, that transform the private plight of these pefitioners inte a ease of far-reaching public importance. hor, ir civil no less than in eriminal litigation, it is only in the continuous observance of basic proe eclurad safeguards that there can be assurance against injustice, First. The court below held that there was no occasion for it te pass upon the validity of the ordinances or of the corporatian’s license, since neither would prov ide the cor poration with: a defense to the charge of constructing a private -nitisanee Cianfra, pp. ASO A34). We would not quarrel with that conclusion for a moment, even. though those issnes were tendered by the pleadings and then liti- wated at leneth (sapra, pp. 5-6, P11 7), if the court below had affirmed the injunetion entered by the district court on the chasis of the latter's detailed findiugs that the corporation's proposed refinery woald constitute a nuisanee. But, once the eourt below set aside those findings, and on its own re- evaluation of the expert testimony held that no tinisance would result, there still remained the allegations of thee residents’ counterclaims that the ordinances and the license, on whieh the @gr poration relied in its complaint and in its reply, were severally invalid, Those allegations, if established, furnished ample grounds for the distfiet court's injunetion. The court below did . : 33 net undertake to review, much less overturn, either. the district court's holding that ore counterelaims stated 4 eause of action (22 FL RL DLS: 4 I. 419-426), or its ean mination (3. R.G1-70; infra, pp. NR - Al4) that the ordinances wnd lieense were each invalid. The court below did not ‘and, in view of Rl. Home Builders y. Budlong Rose Co, oe RL. 147, 74 A, 2d 237, could not) question the reside mtn’ standing to sue. Nor did the court below hold that-the cor- poration was free to procbed with its project even in the ehsence of a license, Instead, the court: below simply dis- tuissed the counterclaims ino their entirety on the footing that the determination of the v; alidity of the ordinances ound dicense Was unnecessary to a disposition of the CAUSE, We are at a loss to understand how or on what theory anvappellate court may thus brush aside fis unnecessary to its decision a ground for relief duly alleged, duiv lite wated. fully establisheds and amply adequate to support the relief granted at the trial In the light of the petition for rehearing, this action, plainly enough, was net inad » Vertent: see Pet, Rell. S11, quoted hove, atop. 3 What the court below didk therefore, was to ‘deprive the petitioners of their independent cause: of ae rio without even considering its merits. That is more than aa abuse Of discretion, it is an aetual abuse of power. Cr. Said rs ¥. Shaw, 244 TLS. 317. We submit that it: constitutes such a far-reaching inavien: froin thesaecepted and usual course of judicial proceedings, as to eall for—and to re. quire—review by this Court. Indeed, on this phase of the case it would not be inappropriate for this Court. to reVerse without arguinent and to remand the Calese for con- . sideration of the ordinanees-and-license aspects of peti- Honers* counterelains, Second, But the decision below involves another and (ally serious departury sro settled norms of judicial ad- unistration, the substitution by the éourt of appeals of its (tkcnent upon and reev: ‘ui ition of amass of highly tech. nical expert testimony that rested at eritical points on the eredibility of witnesses whom it did net—and of course could not-—hear and obsarve. 1. The court below was fullysaware (infra, p. ASD) that ** More than forty days of trial produced a record eon- sisting of thousands of.pages of testimony Xnd hundreds of exhibits a great deal of both being hishly technical ino na- ture’ No less than 24 expert withesses testified on beth sides over a perioe of doa days. The trial judge tomk a view ofall the properties involved (3.42. 152-1055). Followine conclusion of the trial, he made eayeful and explicit tind’ nes bearing on the issue of nuisance, basing his findings at several points on the credibility of the expert witnesses (3 Rout SOSD: infra, p. A244). On one of the erueial isstes-—ground concentration of sulfur dioxide gas by rea- son of the operation of the proposed refinerv—he ex. plained with particularity why he dishelieved the corpora. tion's principal expert (3 Re at SOSD: infra, p.. A24). Yet on a record of this kind, the court below, whieh ad- tnitted that the district judge's finding was supported by the evidence of three experts (infra, p. AO) and which adinitted that in black-and-white the evidence was in sharp conflict Gofra.p. ABO) undertook an independent appraisal of the experts” testimony and of their eredibility, and ‘eon- eluded that the operation of the corporation's refinery, Which if completed will nearly equal the eapacity of all the refineries now operating in New England (3 R. 74: intra, p. ATS), would not constitute a huisanee in respect of these petitioners, more than half of whom have homes within a two-mile radius of the certer of the proposed Process area, Sew nT following ]). 41, ruta, 2. Such retrial of a‘long and complicated ease on the dead pages of a printed reeord is contrary to, and sharps offenis, what has long been the settled praectien, now codi tied in Rule Szca), FOR. Civ, P. (uefra. p. AAS), a practice . to Which numerous eases in this Court have yviven un erudging effeet. United States Vv. Ve llow Cab Coa, 338 US. OOS, OAL: and see particularly United States y. Oredon State, Medical Society, 242 UL S. 326, 339, where-this Court quoted With approval the lnnguage of the New York Court OOF Appeals in Boyd v. Boud, 292 N.Y, 422, 429, 169 NL EB. Hol, OSS: : Face to face with living Witnesses the original trier "of the faets holds a position of advantage from Which appellate judges are exeluded. In doubtful eases the exercise ofghis power of observation often proves the Hest aeeurate Method of ascertaining the aa How can we say the judge is wrong?) We never saw the Witnesses, © °° To the sophistication and sagaeity of the trial Judge the law eontides the duty af ity) praisal.” 7 As this Court said on the same point ina fairly recent patent case (spare p “Mia. Cov. Linde fo. 350 US, Oty, 7 , ; Particularly is this so ina field Where so much de pends upon fainiliarity with specific problems and priy ciples not usually contained in the ceneral storehouse of Knowledge and experience," 6 Ondy a few months before the ruling how in question, the court below ive likewise refused tealisturh a Judginent resting on the sharply contlietine Testinieony of expert Witnesses, Lope: v. Mea Sty amship Co., 2 F. 2d 400), MECN TD). Even in denaturalization eases, whieh per. haps are sai generis in the lack of respeet there accorded ‘ven concurrent findings of faet? (NSehyeid, rman Vv. United States, BW .. 11s, jos; Baumaartye rv. United States, $22 U.S. 6S, OT3: Knaner y. United States, 3283 UL S. 654, HOT-HOS), the court below has hell thuteit was net free * Solution Of the questfon at issue rests entirely upon che ered bility of the eNpert Withesses ated that, of couse, is a tiatter for decision by the court. below betore whieh the witnesses appearer| and testified," 6 fo reexamine credibility. See Brenci v. United States. 17 BL 2d 90, 94 (CLA, 1) 3. Here the court below noted (infra, p. Ad) that the district: judge ‘‘specifieally rejected the testimony of one expert witness with impressive qualifications by train- ing and experience in’ problems of air pollution caused * by refineries.’ “This witness had, however, an even more more lnpressive disqualification: the district Judge dis- chelieved him. And the trier of facts disbelieved him beeause that witness undertook to give an vpinion in the absence of a factor without which accurate Opinion Was impossible, See 3 RLSOST, quoted above at p. 23, where the record ref. erences are also giver, 9 nt Unless, therefore, the maxim falsus in uno, falsus in om. nibus, ix now to be regarded as inapplicable to an expert retained bya corporations the court below was not war- ranted in rehabilitating this witness's ‘eredibility. 4. In numerous. significant. respects, the court of ap- peals made demonstrable factual errors in the course of its independent reappraisal of thee mass of evidence in the present record. In order not further 4o lengthen what. Is already a nevessarfy long document, we have relegated the details of these instances to Appendix Dy intra’ pp. AD3-ADY, ». Moreover, the totality of the evidence in the whole ree- ord—briefly, very briefly, summarized at PP. VT-28) snpre 2598 08 we lp not interpret them [the Schneiderman and Baum. sdartuer eases] as authorizing appellate courts to ake independent tiring, of evitlentiary facets of an ebjective “nature when the credibility. of a witness is arr Impomant faetor in reaching a dl “ision, : The Bre ned case is cited in the opinion now sought to be reviewed mira, op. AAG. note 3) for the proposition ¢hat there is an appel late duty to examine the evidence to sme Whether it meets the req@isie standard of proof: Bit ne referenee is there made to the page. just quoted, whieh reafiirmis the traditional rule that this cdiits does hot inelide #uy power to redetermine credibility. a7 convincingly demonstrates that jt Is utterly iinpossible te characterize as “clearly erroneous’? (Role O2(a)) the dis- trict court's ‘ultimate finding (3 R.s3: infra, p, Al6) that “the operation of.sa'd refiners. in the manner and at the location proposed by the plaintit? will Cause a snistantial diminution both in the values of the defendants’ properties and in their enjeynent thereof as measured by the degree of comfort which the average man living in such a locality has the right to expect”? Very significantly, the court be- low admitted that the evidence on the cold record was con- Hhetine Gufra, DP. AGO), and that the testimony of at least ~ three experts supported one of the district judge's crucial subsidiary findings: ( infra, peo AMO), 6. The sum of the foregoing is that the court below, In reevaluating the expert testimony Without having the expert witnesses before it, did Just precisely what an ap- pellate court should not do; what a tribunal Without access to the Witnesses can not do, particularly ina controversy turning on scientific knowledge: and What the court below has itself recognized that it can not and should not do, Third. The court below committed another error requir- Ing review, viz., the decision of an important state question contrary—in every significant respect—to applieable state law, , I. The court below read Scidner Tne. y. Ralston Purina Co. OF R. 1. 436, 24 A. 2a YO2, as precluding the issuance Of the injunetion granted by the district Judge against the anticipated nuisance of the corporation's refinery, But the district judge was fully aware of the Seidner case. He stated its rile (3 Re 71-72 iutra, Pp. ATS-16), he quoted wat the outset of his opinion (FR, (2s lutra, po NG) its critica! Mtssage that formulates the quantum of proot required Under Rhade Island law to enjoin an anticipated nuisance, und he showed his awareness of the -burden accordingly resting on the residents (3 Ro TS: infra, p. A22). He then Os made an ultivate finding as to the harm which the cor poration’s refinery would wreak upon the residents and upan their Homes (3 R83: imfra, pp. A26-A27), a finding which brought the present case squarely within the Serduer ease and thus within the Rhode Island law as to antici patory nuisances, 2. Actually, this case and Seidner are not even fairly comparable, not only because, the elleged nuisanee_ in Scidner did not remotely approach what is shown on the present record, but also because the. area there invelved Was net residential, as here, butthad long been zoned for industrial uses. As we show in greater detail in Appendix Bh ditracpp. ASU AGE under Rhode [sland Jaw it is the loca. tion which is important in determining the existence of a nuisance (Kennedy v. Frechette, 45 R. 1. 390, 405, 123) Ath 146, 148). and so nuisances in residential areas have never prevailed (Aldrich v. Howard, 8 Re 1. 246; Blomen; Fred- cricksouw Vv. N. Barstow Co,, 35 R. 1. 198, 85 Ath 924; Ken- nedy vw. Frechette, supra). The court below utterly failed fo give proper weight to this factor, 3. Moreover, the Rhode Island law is that a disturbance need not be continuous to constitute a nuisance. ‘That the time of operation is limited, affects the extent. of the in- jury but dees not change the nature thereof.’ Kennedy v. Frechetts, 45 RB. Lat 406; 123 Ath at 148; see infra, pp. AGL-AG2. Consequently the emphasis of the court below on the asserted lack of evidentiary support for the find- ing of a ‘continuous discharge’’ of sulfur dioxide (infra, }). ASS), even if right—whrich, see Appendix lD at }). AGA. infra, We think if was not—retleets a further disregard of Rhode Island law. 4. Since, as has been noted, the court below beld that the ordinances and license even if valid—ie., municipal action regularly and lawfully taken—would not’ justify - or neutralize a nuisance (/afra, pp. ABO-AB4), it seems. » - on plain on principle that the approval of the quatitied voters which the court of appeals mentioned Caitra, po ASD) ean have ne greater effeet. Indeed. the court of appeals” re Hanes on that ciréumstance invelves still another brushing aside of state law. For the Rhode Dstame law ts clear touat economic benefit to the general community will not legal ze cotditions that constitute a onnisanee to individual eso telaardeaalits, Plomen, Predertohson VN. Barstow Cea: 2 a Pl Le ed Ce Oe vo, quoted aetna, ae Us & Net only, therefore, did the United: States Dyststet dudve for the Distriet of Rhode Island correethy apply Rhodes T-tand law, but, very plainly, the court below brushed that law aside. ‘The court of apperts. inherent! ‘oss Well equipped tern sermpser three st reed Cb lee eserl Camm het Corps. Later Board, S40 UL 3. 474, 487) of the Supreme Court of Rhode Tsland. has, bs andertaking te seeomd wness a jitdes with nearly thirty sears of practice in the ecurts ofthat State, aetnallt reverted te pre-Bpre-Tom pling Hay =. WV: “tte the techmiqne of the court below professes te re spect the Taw of Rhode Pstacd. its result is in substanes canned effeet adisregard of that lal all too reminiseent of Blick 1 WhitesTavn, Coo, Brown deYe lon Tass, Co., 276 US OTS. Aceordingiv, review should he had on this issue an well, ha arth, A generation age, when this Court tirst sustained he constittttioasi’s of zoning ordinances designed to pre tert reside ntial teighherhoods againat industrial eneroach- trent. if remarked that * A nuisance may be merely aright thine in the wren place like a pig in the parlor eagihees of the barnvard.’ * Factid vo Ambler By alty Cn., of e SHO SS, livre the court below has opened the doors of the parler in this instance one of the few beauty spots within easy feeess of ao inetropelditab. aren still remaining “in New Linelamd ‘te the entry of a porticularly filthy industria! 44) pug. a massive refinery that will spew forth chemicals and odors to endanger the health and to blight the homes ot these residents. Even as an original proposition, we find it well-nigh incomprehensible that anvone could say that a tremendous oil retinery would not render nearby houtes uninhabitabie or nesriv sa? Petitioners are seeking review, not because the court of appeals fies ranged itself on che. side oof *tmodetn progress a sabes ihig anced Tikened by a Rhode Esland judge to a goose? Whieh d?stroys all before and befouls al) fehind! net because the court of appeals has closed it- rind - and nese sto what everyone else knows—and smells net even solely heeause it has shut its eves ‘to pleading- and to evidenee in this reeord, but essentially because the court © appeals in doing so has disregarded settled rules of appeilate procedyge whieh, in every case save only this one alone. it has regularly applied. : Dr Reanan. a consaltant in choiieal engineering CL Roost tlt who testitied as te the igevitability of odors from an oil refinery oT Ro osetesst) and that “oA refinery always has a smell ee 8 bam saying itjagain today" (TR. 11S8t). said very bhintly TRS other PD wouldn’t want te buy property or own a hogs: wirherr the oor bamile range of the refinery” he the bares 3 Tren s prepesed cetimers in this case. : ‘Mr liste Shearman. a member of the’ Supreme Court) of Rhode Ustad between Psod and Ts6s. See Patne, Reminisce ners om the Rhinty Island Ber Prov tele Thi'e*, Isso) 105-106. 41 CONCLUSION The ruling below reflects a miscarriage of law no less than of justice, This petition for a writ) of certiorari should accordingly be granted. Respectfully submitted. FrepertcK Bersays Wrever, Shite STD Stoneleigh Court Wey Conneetiont Avenue, pace, an Washington 6, DOC, : ('ounsel for the Pe tetioners CORNELIUS ©. Moore, SALVATORE L. ViIRGADAMY, Frascis J. Boye, . 112 Bellevue Avenue, Newport, Rhode Island, dames A. Higains, Witniam C. Dorgan, 1204 Industrial Bank Bldg , Providence 3, Rhode Island, : CHARLES H. DruMMey, So° Westminster Street, Providenee 3, Rhode Island, © Of Counsel. ; . SEPTEMBER 1960. l See hap overeat. | a) --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_0644%3A2. Public record. Not legal advice.