Gilbough v. W. Side Amusement Co.

• Decision Date: 15 November 1902
• Citation: 64 N.J.E. 27,53 A. 289
• Parties: GILBOUGH et al. v. WEST SIDE AMUSEMENT CO.
• Court: New Jersey Court of Chancery

53 A. 289

64 N.J.E. 27

GILBOUGH et al.

v. WEST SIDE AMUSEMENT CO.

Court of Chancery of New Jersey.

Nov. 15, 1902.

Suit by Louis Gilbough and another against the West Side Amusement Company. Plaintiffs move for injunction. Heard on bill and affidavits and answering affidavits. Injunction granted.

E. W. Demurest, for complainants.

William H. Speer, for defendant.

PITNEY, V. C. This is an application for an injunction to restrain the making of noise, which, it is alleged, renders the dwellings of the complainants at certain times uncomfortable, to an unlawful degree.

Before going into the facts of the case, it may be well to allude briefly to the state of the law on the subject: That mere noise may be so great at certain times and under certain circumstances as to amount to an actionable nuisance, and entitle the party subjected to it to the preventive remedy of the court of equity, is thoroughly established. The reason why a certain amount of noise is or may be a nuisance is that it is not only disagreeable, but it also wears upon the nervous system, and produces that feeling which we call "tired." That the subjection of a human being to a continued hearing of loud noises tends to shorten life, I think, is beyond all doubt. Another reason is that mankind needs rest and sleep, and noise tends to prevent both. But then noise is one of the necessary accompaniments of modern civilization, and men, as social beings, must of necessity subject themselves to whatever annoyance reasonably arises out of all those necessary and useful operations of society which do necessarily produce more or less noise. The ordinary hum of machinery, the noise of vehicles propelled along the public highways, and the like, are examples of this noise. And in considering whether a noise amounts to a nuisance, the question whether or not it is made for a necessary or useful purpose is always tak on into consideration. Sometimes the language is, "lawful or unlawful purpose"; and a noise which, if made to answer some useful purpose, might be held to be not a nuisance, will, if used for an unlawful or unnecessary purpose, be held to be a nuisance. So the time when a noise is made is also to be taken into account. Mankind needs sleep for a succession of several hours once in every 24 hours, and nature has provided a time for that purpose, to wit, the nighttime, and by common consent of civilized man the night is devoted to rest and sleep; and noises which would not be adjudged nuisances, under the circumstances, if made in the daytime, will be declared to be nuisances if made at night, and during the hours which are usually devoted by the inhabitants of that neighborhood to sleep. Then again, the experience of mankind has shown that in addition to the ordinary rest which the workingman—whatever may be the nature of his work, mental or physical, or both —is supposed to obtain each night, he needs occasionally a whole day of complete rest; and this day, by common consent, has been fixed by Christian peoples to be Sunday, or the first day of the week. In order to maintain that Sunday is a day of rest, we need not go into the question of its Divine origin, or rely upon the truth of the inspiration of the Bible. The fact is that there is abundant ground to believe that the rest of one day in seven may have arisen out of the actual wants of mankind, irrespective of any Divine command. Therefore, by common consent, quite independent of any statutory regulation, it may be considered as settled that mankind is entitled to one day in seven for rest and quiet. But in addition to that, we have the sanction of what are called the "Sunday Laws" of this state and of many other states, which positively prohibit all work and labor and amusements on that day. To that, again, an exception was made as to all those occupations which are deemed necessary, sometimes called "works of necessity and mercy." People travel about on Sunday, and, of late, railroad trains are permitted to run on Sunday. Domestic animals have to be provided for, and food for the use of man must also be provided, on that day. These, however, are exceptions to the general rule that all business must cease on Sunday. In obedience to this legislation, all ordinary business, including all public business, actually does cease on Sunday. For these reasons, it may be properly held that noises which would not be declared to be nuisances on a week day are held to be nuisances if made on a Sunday, because they have the effect of disturbing that quiet and rest which the citizen, wearied with six days of labor, is entitled to have for his rest and recuperation; and he is entitled to it not because the Sunday laws have declared the making of such noises to be unlawful, but because they do substantially interfere with his quiet enjoyment of the Sunday as a day of rest. But on the other hand, the fact that such noise not only does not tend to any useful purpose such as I have mentioned, but is in fact forbidden by the laws of the land, takes away from the producer of the noise any excuse whatever therefor.

Turning now to the facts in the present case: The complainants, Gilbough and Vredenburgh, are residents of the city of Bayonne, in the county of Hudson. Their dwellings are situate near each other, in the residential portion of that city, near Newark Bay, at its Junction with New York Harbor, and the bill is filed on behalf of themselves and other residents of the city. The defendant is a corporation under the name of the West Side Amusement Company, and its objects, which are set out at great length in its articles of incorporation, are indicated by its title. In the month of August last, the defendant purchased several lots of land, lying in a body, and making a block about 450 feet square, and situate from 1,000 to 1,200 feet from complainants' residences, and inclosed the same by a high board fence, and erected in one corner thereof a grand stand containing seating accommodation for several thousand spectators. On each successive Sunday in September and October it procured to be assembled there a large number of young persons, not only from the immediate neighborhood, but from the adjoining towns and cities, for whose admission it charged 25 cents each, and, as an attraction for the assembling of these persons, procured to be played baseball games. The persons who assembled were young, hilarious, and enthusiastic, and, when excited by witnessing the baseball games, indulged in loud shouts and stamping on the steps of the grand stand, thereby producing a noice so loud that it was heard at the complainants' houses, and at other parts of the city much more distant than those houses from the defendant's grounds. That the noises so produced, if loud enough to appreciably disturb complainants' rest, constitute a nuisance against which the complainants are entitled to relief in this court, follows necessarily from the principles above laid down. Some of the authorities applying more directly to the case are Walker v. Brewster (1807) L. R. 5 Eq. 25. There Vice Chancellor Wood (afterwards Lord Hatherley) reviews the earlier English cases up to that time, Including Soltau v. De Held, 2 Sim. (N. S.) 133. Another case is Inchbald v. Barrington (1869) 4 Ch. App. 388. The court there said: "We have now before us evidence of the plaintiff and his wife, corroborated by that of seven independent witnesses, showing that the noise of the performances was heard inside the houses to such a degree as materially to interfere with the comfort of the inhabitants, according to ordinary habits of life. This evidence is uncontradicted, and I am of opinion that it establishes a case of nuisance, calling for the interference of this court. * * * It is clear, however, from the evidence before us, which was not before Lord Cairns, that the music and noises in the circus were heard distinctly...