Hansen v. Independent School District No. 1 In Nez Perce County, Idaho

• Decision Date: 07 July 1939
• Docket Number: 6691
• Citation: 61 Idaho 109,98 P.2d 959
• Parties: G. H. HANSEN, IDA S. DOLE, H. A. OGSTON, Mrs. JERRY HAYES and J. D. LOCKERBY, Appellants, v. INDEPENDENT SCHOOL DISTRICT NO. 1 IN NEZ PERCE COUNTY, IDAHO, Respondent
• Court: Idaho Supreme Court

98 P.2d 959

61 Idaho 109

G. H. HANSEN, IDA S. DOLE, H. A. OGSTON, Mrs. JERRY HAYES and J. D. LOCKERBY, Appellants, v. INDEPENDENT SCHOOL DISTRICT NO. 1 IN NEZ PERCE COUNTY, IDAHO, Respondent

No. 6691

Supreme Court of Idaho

July 7, 1939

NUISANCE-NIGHT BASEBALL-SCHOOL DISTRICTS-LEASING OF PUBLIC PROPERTY FOR PRIVATE PURPOSE-CONSTITUTIONAL LAW.

1. To constitute a violation of the provision of the Constitution prohibiting the lending of credit by the state and its political bodies in aid of private objectives, it is essential that there be an imposition of liability directly or indirectly on the political body, and unless the credit or faith of political body is obligated there is no violation of the constitutional prohibition. (Const., art. 8, sec. 4; art 12, sec. 4.)

2. The leasing of an athletic field by independent school district for night baseball purposes was not invalid as lending credit of school district in aid of private objectives. (Const art. 8, sec. 4; art. 12, sec. 4.)

3. In action to restrain use of school property for night baseball by lessee, evidence showed that use of the property constituted a legal "nuisance per accidens" consisting principally of the flooding of plaintiffs' homes with excessive light, creation of excessive noise trespass of balls and people, and parking of automobiles in such manner as to greatly hinder ingress to and egress from plaintiffs' property.

4. An injunction to restrain a nuisance per accidens will not be granted where the loss to defendant far outweighs the benefits to be gained by plaintiff.

5. In action for injunction against use of school property for night baseball, court must take into consideration that the ball field was located in a residential district and that it was especially injurious to plaintiffs' property.

6. Baseball games are not "nuisances per se," but become such under circumstances where they are conducted in such a manner as to greatly interfere with legitimate and necessary use and enjoyment of the property of others.

ON REHEARING.

7. In action to restrain use of school property for night baseball by lessee, injunction was granted restraining defendant from caus- ing lights to shine into and on plaintiffs' premises so as to interfere with sleep and reasonable enjoyment of plaintiffs' property, from allowing balls to be knocked or thrown into plaintiffs' premises and from allowing people in search of baseballs to trespass thereon, and from the parking of automobiles in such way as to interfere with the free ingress to and egress from plaintiffs' property and from noise preventing sleep after such time as trial court should find was reasonable.

APPEAL from the District Court of the Tenth Judicial District, for Nez Perce County. Hon. Albert H. Featherstone, Presiding Judge.

Action by appellants for an injunction against the leasing of an athletic field by respondent. Judgment for respondent and appellants appeal. Reversed and limited injunction granted.

Judgment reversed with directions. Costs awarded to appellants.

Murray Estes, for Appellants.

A baseball game is not a nuisance per se, but it becomes such when transferred to a residential section, is conducted at night, and creates a disturbance impairing the physical comfort of persons living in the neighborhood. (Warren Co. v. Dickson, 185 Ga. 481, 195 S.E. 568; Gilbough v. West Side Amusement Co., 64 N.J. Eq. 27, 53 A. 289; Cronin v. Bloemecke, 58 N.J. Eq. 313, 43 A. 605; Hamilton Corporation v. Julian, 130 Md. 597, 101 A. 558, 7 A. L. R. 746; secs. 51-101 and 51-102, I. C. A.)

Any noise whether of human voice, mechanical means or however produced, may be a nuisance, especially if its tendency is to draw together in the vicinity of a person's residence large crowds of noisy people. (Edmunds v. Duff, 280 Pa. 355, 124 A. 489, 33 A. L. R. 719; Phelps v. Winch, 309 Ill. 158, 140 N.E. 847, 28 A. L. R. 1169; Walker v. Wearb, 6 N.Y.S. (2d) 548.)

No board of education or school district shall lend, or pledge the credit or faith thereof directly or indirectly in aid of any individual or association; nor shall such bodies raise money for, make donation or loan its credit to such association. (I. C. A., art. 8, par. 4; art. 12, par. 4; Atkinson v. Board of Commrs. of Ada County, 18 Idaho 282, 108 P. 1046. 28 L. R. A., N. S., 412; School District No. 8 v. Twin Falls etc. Ins. Co., 30 Idaho 400, 164 P. 1174.)

Durham & Hyatt, for Respondent.

The playing of baseball will not be enjoined at the request of an individual unless the individual first establish that the conduct of the game causes special injury to him, that it is a public nuisance affecting a considerable number of persons, and that it is offensive to the senses so as to interfere with the comfortable enjoyment of life or property. (Secs. 51-101, 51-102, 51-204, I. C. A.)

Baseball games are not nuisances per se. (Royse Independent School Dist. et al. v. Reinhardt et al., (Tex. Civ. App.) 159 S.W. 1010.)

Since baseball in itself is not a nuisance per se, the question as to whether it constituted a public nuisance was a question of fact to be determined by the trial court in the first instance. Each case must stand upon its own footing and be determined solely on the facts involved in that particular case. (46 Corpus Juris, pp. 653, 654, par. 18.)

The respondent district had the right to lease Bengal Field where the leasing did not interfere with the use of the field by the school. (Sec. 738 of the Local and Special Laws of the state of Idaho, as amended by House Bill 105, p. 43 of the Session Laws of 1909; sec. 32-616, I. C. A.; chapter 92, 1939 Session Laws, sec. 42, p. 156; Royse Ind. School Dist. et al. v. Reinhardt et al., supra.)

GIVENS, J., AILSHIE, C. J. Ailshie, C. J., Budge, Holden, JJ., Givens, and Morgan, JJ., concurring. Morgan, J., did not participate in the decision of this case. BUDGE, J., Dissenting.

OPINION

GIVENS, J.

1934 respondent school district owned one half of what is now Bengal Field and that year the balance of the ground was purchased by the Associated Student Body of Lewiston High School. From 1934 to 1936 through P. W. A. aid the field was sodded and bleachers erected making it suitable for football. 1937 various citizens and civic groups of Lewiston raised funds to equip the field for baseball. Under agreement with respondent lighting facilities were installed, the bleachers enlarged and improved and the field made ready for night baseball. April 12, 1937, respondent leased the field to A. B. Kurbitz, owner of a professional baseball club, and night baseball was initiated under that agreement.

April 22, 1938, respondent, through its board of trustees, adopted the following resolution for the purpose of leasing Bengal Field during the 1938 baseball season:

"Be It Hereby Resolved, That the following working arrangements be put into effect by the Board of Directors for the use of Bengal Field during the present baseball season, or so long as such arrangements continue to work out with entire satisfaction to the Board:

"1. The locally sponsored baseball team known as 'The Lewiston Indians' shall be permitted to use the field and keep 90 per cent of the gross receipts from the games they play. The Lewiston Indians will be responsible for

"a. The cost of lighting for games they play, and

"b. The cost of ticket men and policemen for games.

"2. The financial officer of the Lewiston Indians shall turn over 10 per cent of the gross receipts to F. S. Brown, Clerk, once each week, and F. S. Brown will disburse these funds for

"a. The replacement of light bulbs,

"b. One-half the cost of a special caretaker.

"This man is to be employed by the school board, and the other half of his wages will be paid from district funds.

"c. Replacement of sod and permanent equipment for fall sports.

"d. Incidental costs of preparing field for community baseball.

"e. A pro-rated share of the cost of liability insurance. The school board will carry the insurance coverage.

"f. Refunds for the local contributors to the permanent investment. Anything left in this fund at the close of the season will be distributed to these men.

"3. The school board will stand all regular costs to the district, including water, paint, general supervision, and miscellaneous items of upkeep. This will also include one-half of the wages of a caretaker and a pro-rated share of liability insurance.

"4. Mr. Caple shall represent the school board in directing changes required in preparation for community base-ball and Mr. Markham shall supervise all work of maintenance and operation of the field.

"5. Nothing in this resolution shall be interpreted as to place any additional financial obligation or liability on the school board due to the use of Bengal Field by non-school organizations; nor as to permit any interference with school activities."

This agreement was later amended by the minutes of respondent's board of trustees of May 9, 1938, as follows:

"Five per cent of the gross gate receipts are to be paid by the Lewiston Indians Baseball Club to F. S. Brown, Clerk, to be expended by him for the following named purposes:

"1. To be applied on the present indebtedness for Bengal Field Improvements, bills that were not fully paid from the collections and receipts during the year 1937, being due Madison Lumber Co., $ 253.00, Morey-Robison Electric Co., $ 171.00, and Potlatch Forests, Inc., $ 187.00, a total of $ 611.00.

"2. After the above named indebtedness has been paid in full moneys from the five per cent of gross gate receipts shall be distributed pro rate to the business firms and persons who put up the money for the improvements made in 1937.

"The salary of the ground keeper shall be paid one-half by the...