I dissent.
The majority opinion overrides the findings of the trial court based on conflicting evidence and thus arrives at the conclusion that defendants were not continuing the nonconforming use of their property after the passage of the zoning ordinance.
The trial court found that in 1938, before any zoning ordinance was applicable to defendants’ property they used it “for heavy industrial' purposes, including, among others, the following : automobile and motor-truck wrecking and rebuilding; heavy machinery wrecking and rebuilding; boiler shops; gasoline and oil storage, above ground-, junk yards; lumber storage and wood-working, such storage being carried on in the open and without enclosure by walls; the manufacture, storage and use of acetylene gas; sandblasting; both gas and electric welding; storage of explosives; storage, and use in manufacturing processes, of paints, oil and shellac; the operation of a planing mill; • storage of rock, sand and gravel; storage of old iron in large quantities; operation of large machine. shops, using heavy machinery; storage and repair of heavy construction machinery; sale of machinery of various kinds. That said Defendants have made use of all of the land so owned by them ... as a unit, to be used in its entirety for the convenient and efficient operation thereon of the said heavy industrial purposes and uses.” (Italics added.) It was spe*693cifically found, with reference to the four storage tanks here involved, that: “the portion of said Defendants’ said land upon which said tanks for the storage of gasoline and other fuels were erected and are now situated is within the portion of said lands which said Defendants have, continuously since the year 1938, used for heavy industrial purposes, as aforesaid.” (Italics added.)
The evidence adequately supports those findings, establishing that prior to 1942, and before the enactment of the zoning ordinance, defendants conducted an extensive industrial business on all their property, manufacturing heavy machinery, constructing heavy equipment, storing; selling and using explosives, gasoline, butane, lumber, machinery, etc. For illustration, J. A. McClurken, one of the defendants, testified': “Q. Now, in this matter of the storage of fuel and lumber and paint and explosives and so on, was that restricted strictly to any one particular portion of the premises? A. It was spread over the entire property. That is what the property was purchased for and that is what it was used for constantly from that day till this. . . . Q. Now, with regard to the fuel storage there for the use of gasoline or Diesel or butane1 operated engines, during what portion of the time did you have an above-ground fuel storage? Was that prior to 1942? A. Oh, yes, we have always had our fuel above ground. . . . Q. When you say tanks off of trucks do you mean the little 15 or 20 gallon tanks that the trucks, in the engine, gets its fuel from ? A. No, we have one tank that holds 1200 gallons; another one that holds 2300 gallons; another one I think holds 6000 gallons. They have not all been full, as a rule, at one time, but we have used them according to the volume of work and according to the needs of the equipment, or according to our gasoline usage. Sometimes they would all be full; sometimes one of them would be full, and it would vary according' to the actual gallonage that we were using. . . . Q. Now, what part of the premises did you have above-ground fuel storage on? Was it limited permanently and definitely to just one tank, or where ? A. Oh, no, we had it all over the property; first one spot and then another; wherever it was most convenient to have it.” With reference to any change in the use of the property he said: “Q. Now, getting back to the various types of manufacturing and storage work conducted on your premises, has there been an(y) substantial change in the nature of the use of your premises from what it was before 1942, as you have described it, down to the present time? *694Have you changed your use ? A. No, sir, our operations are identical.” (Italics added.) In other words, defendants were engaged in a highly diversified business which embraced selling, manufacturing, storing and repairing a wide variety of things, and to conduct that business, maintained all sorts of equipment, huge buildings and tanks. That business is the same now as it was prior to 1942. The trial court, taking all of these factors into consideration, concluded that the use of the gasoline tanks here involved did not constitute a substantial change in the use of the property. Certainly that cannot be said to be an unreasonable conclusion, yet the majority states that it is. By a picayunish selection of trivialities, it asserts there was a change of use because the tanks are larger than those used formerly and that the fuels stored are to be used for sale instead of defendants’ use in manufacturing. There is evidence that fuel was sold before 1942, but, in any event, the change is not substantial considering the extensive and diversified character of defendants’ operations. The ordinance exempts uses existing at the time of its passage. Here the evidence shows that the use of defendants’ property is the same.. They are still operating the same business as before the adoption of the ordinance.
There is no sound basis for distinction between this case and Dobbins v. Los Angeles, 195 U.S. 223 [25 S.Ct. 18, 49 L.Ed. 169], where the court held invalid an ordinance barring gas works where the property owner had partially erected the plant when the ordinance was passed. The court there said (p. 239): “Being the owner of the land and having partially erected the works the plaintiff in error had acquired property rights and was entitled to protection against unconstitutional encroachments which would have the effect to deprive her of her property without due process of law.” If the right to complete a partially built structure is protected, certainly there is a constitutionally protected right to continue to operate the business exactly the same as before (as the evidence shows). Fuel storage tanks were previously maintained on the property. There is no more reason for preventing their enlargement than there would be for stopping the completion of a gas plant. In fact, this is a stronger case, for here the industrial business operations are being continued. The true test has been stated: “The fact that improved or more efficient instrumentalities are utilized in pursuit of the use does not exclude it from the category of an ‘existing use’ within a town zoning ordinance permitting the continuance of nonconforming existing uses, provided the instrumentalities are *695ordinarily and reasonably adapted to make the use available to the owner and the original nature and purpose of the undertaking remain unchanged. ... It is a definitely settled proposition of law that the ‘continuance of a non-conforming use’ existing at the time of the adoption of the zoning ordinance is a continuance of the same use and not some other kind of use. In determining whether a non-conforming use was the same before and after passage of a zoning ordinance, so as to be permissible, each case must stand on its own facts. ... In a recent New York case where a lot in an area zoned for residential purposes was subject to a non-conforming use of storage of poles, cable and pipe, the non-conforming use related to storage and the storage of any other object was a valid continuation of such non-conforming use unless the thing stored was vastly different and in itself created new problems, in which case it could be considered a change of use.” (Emphasis added.) (Yokley, Zoning Law & Practice, p. 254.) (See, also, Royal Baking Co. v. Oklahoma City, 182 Okla. 45 [75 P.2d 1105]; Borough of Cheswick v. Bechman, 352 Pa. 79 [42 A.2d 60]; President & Trustees of Ossining v. Meredith, 73 N.Y.S.2d 897; McIvor v. Mercer-Fraser Co., 76 Cal.App.2d 247 [172 P.2d 758].)
Reference is made to the portion of the ordinance prohibiting structural changes in preexisting buildings. Plainly, that provision deals with the change in use of the property which would follow from a structural alteration, that is, for example, if a residence was so changed that it could be used as a factory. The essential factor is still the nature of the use of the property. Has that been so altered or extended that the exemption for nonconforming uses does not apply ? If not, as is the case here, there is no violation of the zoning law.
Finally, it is said that the evidence is highly conflicting on whether the ordinance discriminates against defendants, but that there is no finding on the subject, and, therefore, defendants cannot prevail. There is ample evidence that the immediate neighborhood around defendants’ property is thickly sprinkled with heavy industry and businesses such as the storage and sale of fuel. The findings must be liberally construed to support the judgment. So construed, there is a sufficient finding on the subject. Defendants, in their answer, denied that they had violated the ordinance and that the ordinance applied to their property. That denial was found to be true. They alleged that their use was “in keeping with permits” granted by the county. That was found to be true. *696It may be at least, implied from such findings that-the ordinance, unlawfully, discriminates against them, and the judgment. might, well ..be upheld, on this ground. However, there •is no need of even considering the question, of discrimination in the enforcement of the ordinance, as the evidence overwhelmingly supports the finding that defendants’ so-called nonemforming uses are a mere continuation of the uses to which their property had been devoted before the adoption of the ordinance and are therefore exempted by its provisions. . ■ I, am in full accord with the views expressed in the opinion •prepared by Mr. Presiding Justice Barnard of the District •C.qurt of Appeal,-Fourth Appellate District, which affirmed the judgment in this ease. (See 99 A.C.A. 957 [222 P.2d 688].)
. J would therefore affirm the judgment.