Akers v. Marsh , 19 App. D.C. 28 ( 1901 )

Mr. Chief Justice Alvey

delivered the opinion of the Court:

The appellants upon this appeal have assigned four grounds of error in the decree appealed from, viz.:

1. In holding that the acts charged and proven constitute a nuisance.

2. In holding that proof of annoyance and discomfort to the complainants, or either of them, warranted an injunction, it not appearing that the acts complained of did or would disturb or discomfort persons normally constituted.

3. In granting an injunction as prayed; and,

4. In not dismissing the bill.

1. In cases of this character questions of great importance, as well as of great delicacy, are nearly always involved; the question being within what limit or under what restriction a party complaining can rightfully insist that his neighbor shall use or enjoy his property. The maxim is an old one, and one which is founded in the necessity of property rights and the good order of society, which declares that every person must enjoy his own property in such a manner as not to injure that of another person. This, however, is but the formulation of a general principle. A party must enjoy his own property in such manner as not to involve the legal rights of his neighbor as defined by law. But, in the relations of communities of people, mere matters of inconvenience or ordinary discomforts, such as are ordinarily incident to social life, must be endured, and cannot be made the subjects of judicial cognizance. There are always certain inconveniences and annoyances that must be suffered, and owing to the different temperaments and nervous constitutions of people, some suffer more than others. But the law does not make an exception to meet the cases of pronounced idiosyncrasies or states of peculiar infirm health of people. If every instance of annoyance, resulting from noise, smoke or odor, proceeding from a neighbor’s premises, or light flickering in or glaring from a neighbor’s windows, to the discomfort of a party living near by, could be made the ground for judicial interference, without reference to the special circumstances of the ease, and the degree of annoyance or discomfort suffered, the courts would be filled with such litigation, and a large portion of the inhabitants, especially of cities, would be constantly engaged in litigious strife. The law, however, does not encourage such litigation. It is only for the invasion of the legal rights of the complainant that the court will interfere; and no right of action either at law or in equity can be supported against a party for the reasonable use of his property or the reasonable exercise of his rights over the same, although such rights be enjoyed or exercised in a manner that may occasion annoyance or inconvenience to another. The books abound with illustrations of this general principle.

As we have said, the application to the courts for relief by injunction in such cases can only be maintained for a plain and substantial invasion of the legal rights of the complainant; or, as said by the vice-chancellor in Soltan v. De Held, 2 Sim. (N. S.) 151, equity will only interfere in eases of nuisances where the thing complained of is a nuisance at law; that there is no such thing as an equitable nuisance. And the complainant, before he can ask for relief by injunction, must prove that he has sustained such a substantial injury, by the acts of the defendant, as would have entitled him to a verdict in an action at law. Elmhirst v. Spencer, 2 Mac. & G. 45; Parker v. Lake Cotton Co., 2 Black (U. S.), 545, 551, 552. And there are many cases of private nuisance which will sustain an action at law, but which will not justify relief in equity. 2 Sto. Eq., Sec. 925; Attorney-General v. Nichol, 16 Ves. 338; Corporation of New York v. Mapes, 6 Johns. Ch. 46; Railroad Co. v. Artcher, 6 Paige, 83. But a court of equity will interfere when the injury by the wrongful act of the adverse party will be irreparable, as where the loss of health, the loss of trade, the destruction of the means of subsistence, or the ruin of property must ensue. 2 Sto. Eq., Sec. 925; Parker v. Lake Cotton Co., supra. And the rule is now established, at least by a decided preponderance of judicial authority, that even though the damage is small, indeed merely nominal, yet if the injury is of a continuous nature, so as to operate as a constantly recurring grievance, the court will restrain it, to avoid a multiplicity of actions. Wood v. Sutcliffe, 8 Eng. L. & Eq. 217; Parker v. Lake Cotton Co., supra; Elmhirst v. Spencer, 2 Mac. & G. 46; Corning v. Troy Iron Factory, 40 N. Y. 191. But, if the damage is small, and the injury only occasional, rather than a probable and necessary consequence, an injunction will be denied. Wood v. Sutcliffe, supra; Parker v. Lake Cotton Co., supra, 2 Sto. Eq., Sec. 925.

The subject-matter of nuisances are various; and no particular combination of sources of annoyance is, by the law, deemed essential to constitute a nuisance; nor are the possible sources exhaustively defined by any rule of law, applied either by the courts of law or equity. Hence “ smoke, unaccompanied with noise or noxious vapor, noise alone, offensive vapors alone, although not injurious to health, may severally constitute a nuisance to the owner of adjoining or neighboring property.” Crump v. Lambert, 3 Eq. Cas. 412. So the persistent and unnecessary ringing and tolling of large bells; the loud music, shouting, and other noises attending the performance of a circus, the collection of a crowd of disorderly people by a noisy entertainment of music and fireworks, to the grave annoyance of persons dwelling in the neighborhood, have all been held to be nuisances and restrained by the authority of the court of equity. Soltan v. De Held, 2 Sim. (N. S.) 133; Inchbald v. Barrington, 4 Ch. App. 388; Walker v. Brewster, 5 Eq. Cas. 24; Pollock on Torts, 334.

Of course, when a party comes into a court .of equity to be relieved of an alleged nuisance, such as is alleged in this case, there are two things to be considered: Eirst, the right of the defendants against whom the complaint is made; and second, the rights of the party complaining. The onus of proof is upon the party complainant.

Where the ground of complaint is such as is stated in the bill in this case, that of an alleged nuisance created by noise, smoke, odor, and light, by which the complainants are annoyed, the question is one of degree as well as of locality. And the question in all such cases is, ought the alleged inconvenience and annoyance to be considered in fact, as anything more than fanciful, or as matter of mere delicacy or fastidiousness; or as an inconvenience materially interfering with the ordinary comfort, physically, of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and simple notions that prevail with and among the respectable and substantial people. Soltan v. De Held, supra; Walter v. Selfe, 4 De G. & Sm. 315. Or, as the question is stated in the American cases, whether the nuisance complained of will, or does, produce such a condition of things as, in the judgment of reasonable men, is naturally productive of physical discomfort to persons of ordinary sensibilities, and of ordinary tastes and habits, and as, in view of the circumstances of the case, is unreasonable and in derogation of the rights of .the complainant. Dittman v. Repp, 50 Md. 516; Rogers v. Elliott, 146 Mass. 349; Wood Nuis., Sec. 568, p. 599, and cases cited.

Now, we entirely agree with the learned justice below in his finding upon the evidence, “ that there can be no question that the game that has been described in the testimony is an innocent pastime, and that the exercise of such game, if it may be called such, is healthful and enjoyable, and parties are to be commended for making use of such outdoor exercise for the purpose of recreation under ordinary conditions.” It is also found to be established by the proof, that the game was not conducted in a disorderly or in a boisterous manner, or with any more noise than usually attends the playing of the game. It must, therefore, be conceded that the game was a lawful one, and innocent in itself, unless there was something connected with the playing of it that made it unlawful as it affected the complainants. The only things that are relied on as making it unlawful are the usual noise incident to the playing the game, the time and place when and where played, and the light and smoke emitted from the small lamps hung upon the wickets. That the female complainant was affected, by some, at least, of the causes of discomfort alleged, would seem to be shown beyond doubt. But her husband would seem to have been affected by the playing of the game only by reason of his careful attention to his wife, while she Was in her nervous and excited condition. Other people having their dwellings in the immediate neighborhood, and within sight and hearing of the playground, were not affected or in any manner incommoded by the game. The proof shows very plainly that the female plaintiff was in a peculiar condition of health, and that her nervous system was very much affected, so much so that she was rendered very sensitive, and was very susceptible of strong and emotional impressions made by all kinds of petty annoyances. Her condition was certainly unfortunate, and entitled her to the kind consideration of her neighbors. But we find nothing in the evidence to justify the conclusion that the parties complained of wilfully persisted in playing the game with a malicious motive of annoying the complainants.- In the absence of such evidence we think there is no sufficient ground shown for an injunction. The rights of property to which the defendants are entitled must be respected, and their rights of enjoyment cannot be restricted because of the unfortunate nervous condition of one of many persons dwelling in the immediate vicinity of the property. The court below very properly concluded that the proof did not sustain the claim of the complainants that sufficient smoke emanated from the lamps on the wickets to constitute a nuisance. And we may say the same in regard to the light emanating from those lamps. The light was not of a character to constitute a nuisance that would seriously and materially affect the comfort of people of ordinary nerves and sensibility, any more than would the lights from the street lamps near the dwelling, or the lights glaring from a neighbor’s windows. The only colorable ground of complaint was the noise incident to the playing the game of croquet at night or after nightfall. But we think that furnished no substantial ground for restraining the parties from enjoying their occasional recreation, by playing the game of croquet on the vacant lot during the warm weather.

In the case of Gaunt v. Fynney, L. R., 8 Ch. App. 8, the facts, in many respects, were quite analogous to those in the present case, and the principle involved was the same. In that case the bill was filed by the owners (two ladies), of a house for the purpose of obtaining an injunction to restrain the owners of adjoining buildings from causing a nuisance by noise and vibration, and from trespassing by encroachment, and from an obstruction of light, and for the purpose of obtaining damages. The Master of the Bolls refused to grant an injunction, but made a decree for an inquiry as to damages. Both parties appealed.

In the opinion of the Court of Appeal, delivered by Lord Chancellor Selborne, the question as to what amount or degree of annoyance produced by noise, which will induce the court to interfere between owners of adjoining premises, was discussed and defined, and the nature and value of evidence in such cases was fully considered. The decree below was reversed and the bill dismissed.

In the course of the opinion, the Chancellor said: “ There may, of course, be such a thing as a legal nuisance from noise in populous towns, of which the case of Soltan v. De Held is an example. But a nuisance of this kind is much more difficult to prove than when the injury complained of is the demonstrable effect of a visible or tangible cause, as when waters are fouled by sewage, or when the fumes of mineral acids pass from the.chimneys of factories or other works over land or houses producing deleterious physical changes which science can trace and explain. A nuisance by noise (supposing malice to be out of the question) is emphatically a question of degree. If my neighbor builds a house against a party wall, next to my own, and I hear through the wall more than is agreeable to me of the sounds from his nursery or his music-room, it does not follow (even if I am nervously sensitive or in infirm health) that I can bring an action or obtain an injunction. Such things, to offend against the law, must be done in a manner which, beyond fair controversy, ought to be regarded as exceptional and unreasonable.”

In another part of the opinion, the learned Chancellor, in speaking of the influence of certain dominating thoughts or expectations, in producing and exaggerating annoyances, especially in regard to hearing, said: “ Mr. Fry made, in a part of his argument, a happy use of a passage in a recent work upon mental science (Tuke, on the Influence of the Mind on the Body, p. 47), which, treating of the influence of the mind upon the sense of hearing, says ‘that the thought uppermost in the mind, the predominant idea or expectation, makes a real sensation from without assume a different character.’ Every one must have had some experience of the truth of this statement; a nervous, or an anxious or prepossessed listener hears sounds which would otherwise have passed unnoticed, and magnifies and exaggerates into some new significance, originating within himself, sounds which at other times would have been passively heard and not regarded.” , The Chancellor then proceeds to say that he had no doubt that the noise and sounds complained of were heard by the complainants, but that they did not constitute a nuisance to justify the court in interfering by injunction, or even in awarding damages.

We have carefully examined this case, and while fully appreciating the importance of it, not only to the parties concerned, but to the general public to be affected by the precedent, we do not find in the case anything that justifies the .interference of the court by injunction; and we therefore reverse the decree below and direct the bill to be dismissed; and it is so ordered.

Decree reversed and bill ordered to be dismissed.