Dorsett v. Nunis , 191 Ga. 559 ( 1941 )

The court did not err in refusing to grant an interlocutory injunction restraining the erection of a church in a residential section and in close proximity to the homes of the plaintiffs, on the ground that it would be a nuisance.

No. 13468. FEBRUARY 12, 1941. Property owners in the Town of Douglasville sought to enjoin the erection of a church in close proximity to their residences. The denial of an interlocutory injunction gives rise to the present writ of error. It appears from the allegations of the petition that the plaintiffs' homes are situated in a section which is exclusively residential, and that a church is about to be erected therein by an organization calling itself the "Church of God," sometimes referred to as the "Holy Rollers." The petition contained the following material allegations: "The contemplated building . . will injure and damage petitioners . . and will lessen the value of their property in said community. . . The location of any public building at such place in close proximity to the property of petitioners will destroy the peaceable and uninterrupted use of their homes and the peace and quietude thereof. . . The organization known as the ``Church of God' and its constituents conduct their . . services in such a manner that the same becomes, and is, a nuisance to those people who are in close proximity to their place of holding services. In substance their manner of service consists of loud discourse, loud exclaiming in what is sometimes termed ``unknown tongue,' dancing, singing, and playing upon various stringed instruments and other instruments calculated to create loud and violent noises. . . These services are conducted at unusually late hours of the night and with such disturbance that petitioners will be deprived of the uninterrupted use of their . . homes. They can not sleep or get rest in their homes while these services are being held, and such services usually last until midnight and sometimes later. . . Each and every service which will be held from three to six nights in each week, and sometimes every night, will be a nuisance; and . . each of the petitioners will be especially damaged by said services as herein stated. . . So far as they have been able to learn, the said ``Church of God' has no assets, and could not be made to answer in damages, if the same is a legal entity; and the defendants named herein are each wholly insolvent and unable to respond in damages."

The defendants answered, admitting that they intended erecting a church at the place alleged, but denying the remaining material allegations of the petition. It was further alleged "that instead of constituting a nuisance as averred and charged in the petition, defendants intend, expect, and hope that their work and efforts will result in the improvement of mankind in general and the betterment of the community in particular." On the hearing the plaintiffs submitted affidavits which tended to support the allegations of their petition. There was testimony that besides the defendants' organization there was another organization in the community which claimed the right to call itself the "Church of God," the two being the result of a split in an original organization of that name. The other organization had a church located about half a mile from the site of the proposed church. It was related that the services held in the existing church were attended with much noise of the character described in the petition, and one of the plaintiffs was apprehensive, because of the conflict and rivalry between the two, that "each will talk and vie with the other to sing the loudest and to make the most noise to attract and obtain adherents to each particular church." It was shown that on one or two occasions before the institution of the present suit the defendants held services in the home of one of its members, located in the plaintiffs' section of town, and that the services were boisterous and disturbing and continued late into the night. There was also testimony on the part of some of the plaintiffs of their ill health and the necessity for them in their condition to have quiet.

M. E. Wilson, a pastor and officially known as the "Overseer for Georgia" of the defendants' organization, who lives in another city in the State, testified for the defendants as follows: "We conduct our religious services in a usual and orderly manner. We expect to organize and have a Sunday-School which will usually meet about 9:30 or 10 o'clock every Sunday morning, and we will have church services usually at 11 o'clock on Sunday morning and at 8 o'clock on Sunday nights, and will expect to hold till 9:30 or possibly to 10 o'clock p. m. on Sundays; in the event of revivals we might hold services longer. . . Our services are conducted in an orderly manner; we do not make unusual or unnecessary noises any more than other churches, such as the Methodist or the Baptist. For musical instruments we use the piano, and sometimes stringed instruments such as the violin and other stringed musical instruments. . . We do not expect to create any disturbance in this city, but on the contrary we believe our church will result in good to the community where the church is to be built; most of our members in this city live near where we expect to build our church." On cross-examination: "While our people are emotional at times in their worship, they are not much more so than the Methodist and Baptist. When our people feel that they have found salvation they rejoice sometimes by crying and shouting and giving praise to God, but they do not always express their feeling that way; sometimes they are very quiet; and the services, on the whole, are not much different from other churches. . . We expect to conduct our church in an orderly and Christian manner, and we do not wish to give offense to any one. We believe the people who are objecting to our church are mistaken, and that after the church is built and organized they will find that we are all right; and that our church will result in everlasting good to the community." A witness who was a member of the other organization testified: "That the church on Sawtell Street was an orderly church, and did not create any unnecessary noise. That when people got the spirit they made the same manifest by shouting and in various ways, but that it did not cause unnecessary noise. He had attended services conducted by these parties who propose to build a new church, in their homes, and that they were not unusually turbulent and did not, in his opinion, disturb any one." It should be first observed that the ill health and unusual sensitiveness of some of the plaintiffs to noise has no relevancy in the controversy. In the determination of whether a given state of facts discloses a nuisance, the general effect of the condition shown on an ordinary person, rather than one of abnormal sensibilities and feelings, is the proper consideration. This is apparent from the definition of a nuisance as contained in the Code, § 72-101, where it is provided that "The inconvenience complained of shall not be fanciful, or such as would affect only one of fastidious taste, but it shall be such as would affect an ordinary reasonable man." (Italics supplied.) See Warren Co. v. Dickson, 185 Ga. 481 (195 S.E. 568), where the rule is applied and numerous authorities cited. The present case represents an effort to enjoin the erection of a church, on the theory that it will be a nuisance to the surrounding property owners. It is of course manifest that a church though erected in a residential section is not per se a nuisance. This being true, the depreciation in value of the plaintiffs' properties because of the existence of the church in close proximity to their homes, as well as the noise that will result from an orderly and properly conducted Christian service therein, are not matters about which the plaintiffs may complain either in law or equity. See Standard Oil Co. v. Kahn,165 Ga. 575 (141 S.E. 643). The plaintiffs' complaint is of necessity based principally on the asserted fact that the services of the defendants are attended with an unusual amount of noise such as is described in the petition, which will render their homes unfit for habitation. The judge did not pass on the general demurrer to the petition; and we do not adjudicate whether, when, and under what circumstances the conduct of religious services in a church would be a nuisance per accidens as the result of noise resulting therefrom. Whether there will be as much noise and disturbance in the conduct of the services as anticipated by the plaintiffs is, under the evidence, conjectural. There was certainly a sufficient conflict on this issue to authorize the judge in his discretion to deny an interlocutory injunction. InHarrison v. Brooks, 20 Ga. 537, this court said: "A court of equity will only exercise the power to restrain nuisances in the course of erection in cases of necessity; where the evil sought to be remedied is not merely probable, but certain; and it will be the less inclined to interfere where the apprehended mischief is to follow from such establishments (as, for instance, a livery-stable) as have a tendency to promote the public convenience." This principle has been restated and applied many times. Richmond Cotton-Oil Co. v. Castellaw, 134 Ga. 472 (67 S.E. 1126); Bacon v. Walker, 77 Ga. 336; Rounsaville v. Kohlheim, 68 Ga. 668 (45 Am. R. 505); Wingate v.Doerun, 177 Ga. 373 (170 S.E. 226); Hope v. Governor'sHorse Guard, 153 Ga. 633 (113 S.E. 189); Gray v. Chason,158 Ga. 313 (123 S.E. 290); Barton v. Rogers, 166 Ga. 802 (144 S.E. 248).

Judgment affirmed. All the Justices concur.