Kobielski v. Belle Isle E. Side Creamery Co., 9.

Decision Date27 April 1923
Docket NumberNo. 9.,9.
Citation222 Mich. 656,193 N.W. 214
PartiesKOBIELSKI et al. v. BELLE ISLE EAST SIDE CREAMERY CO.
CourtMichigan Supreme Court

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Wayne County, in Chancery; Henry A. Mandell, Judge.

Suit by Stanley Kobielski and another against the Belle Isle East Side Creamery Company to abate a nuisance. Decree for defendant, and plaintiffs appeal. Reversed, and decree for plaintiffs ordered.

Argued before WIEST, C. J., and FELLOWS, MCDONALD, CLARK, BIRD, SHARPE, MOORE, and STEERE, JJ.

Moore, Clark, and Fellows, JJ., dissenting.

Walter M. Nelson, of Detroit, for appellants.

Edward D. Devine, of Detroit, for appellee.

BIRD, J.

Plaintiffs filed their bill in the Wayne circuit court to abate a nuisance alleged to have been created by the defendant in the vicinity of their dwelling. Relief was denied, and the bill dismissed. Plaintiffs appeal.

Plaintiffs were the owners of a two-family flat known as 1030 Forrest avenue East, in the city of Detroit. They occupied one of the flats and rented the other one. To the west of plaintiffs' lot is a public alley 25 feet in width, and west of the public alley are the lots occupied by defendant as a creamery plant. When plaintiffs purchased their property there, there was one residence immediately west of the alley; but those premises were purchased by defendants and the house moved therefrom. Now defendant's premises bound the alley on the west, and plaintiffs' premises are on the east; their house being situate within 2 feet of the alley. About a year after plaintiffs purchased their premises, defendant bought some lots on that block and established its creamery. Since that time defendant's plant has gradually expanded and absorbed other lots.

Defendant has a capital of $750,000 and does a large business. It has 75 routes over which it delivers milk. It delivers milk to 20 independent dealers for their routes. It employs a large number of men and operates between 90 and 100 vehicles, some of which are automobiles and some are wagons. It uses in its business a large number of milk cans, bottles, and cases. It turns out about 2,500 cases of milk every morning. It maintains in the plant a conveyor, which conveys the milk from the plant to the loading platform. To the south of the plant and plaintiffs' premises, it maintains the barns for its horses.

The testimony shows that the active work with trucks and wagons commences about 12:30 at night and increases in activity up to 2:30 or 3 o'clock a. m., when the maximum is reached, and then continues on until between 7 and 8 in the morning. Heavily loaded auto trucks come in over the paved alley and unload, and then reload with empty cans. Horses and wagons to carry the milk over the 75 routes are gotten ready around 3 o'clock in the morning, and they load up their milk and drive out over this paved alley within 2 feet of plaintiffs' house. The milk cans are thrown against each other, and the clinking of bottles is heard when the men are loading up or returning the bottles. In addition to this activity, the men are talking to each other in a loud voice in order to be heard. Some of them swear at their restless horses. Automobiles are started and stopped, and some of them are left running during the process of loading, and the smoke and bad odor work their way into plaintiffs' house in the warm weather, when the windows are up.

The plaintiffs allege that this intense activity keeps them awake at night; that they are frequently awakened by this medley of noises, and are afterwards unable to sleep again by reason of them; that the deprivation of sleep has had an unfavorable effect on their health and produced nervous disorders to such an extent that plaintiff lost his position by reason of it. Plaintiffs further complain that by reason of the noise they are unable to rent the other flat in their house; that their tenants would remain only for a short time, because they could not sleep. This claim was verified by several ex-tenants appearing as witnesses and testifying to the fact. Several other witnesses, some of them neighbors, testified to the boisterous manner in which the work of the plant is carried on.

Other witnesses appeared for defendant and gave testimony modifying to some extent that given for plaintiff. At the conclusion of the proof the chancellor announced the following conclusion:

‘The Court: I will find as a fact, and as a matter of record, that the conditions as shown by the evidence to have existed do constitute a nuisance, and I do think this should be so changed and modified by a decree as to abate in a degree the nuisance that now exists.’

The chancellor concluded, however, to give defendant an opportunity to better conditions, and suggested that a shed be built over the paved alleyway between plaintiffs' house and the creamery. The case was adjourned and this suggestion was acted upon. A shed was built, and further proof was then taken as to its efficiency. At the conclusion of the adjourned hearing the chancellor denied the relief prayed for and dismissed plaintiffs' bill.

The question presented is whether these disagreeable noises in the nighttime in such close proximity to plaintiffs' dwelling constitute a nuisance which should be abated by injunction. In considering the question whether noises furnish a ground for injunctive relief, it is observed in R. C. L. that:

‘The authorities are numerous which hold that noise alone, or noise accompanied by vibration, if it be of such character as to be productive of actual physical discomfort and annoyance to a person of ordinary sensibility, may create a nuisance, and be the subject of an action at law, or an injunction from a court of equity, though such noise and vibration may result from the carrying on of a trade or business in a town or city. To have this effect the noise must be unreasonable in degree; and reasonableness in this respect is a question of fact, depending on the character of the business, the manner in which it is conducted, its location and relation to other property, and the other facts and circumstances of the case. The number of people concerned by the noise and the magnitude of the industry complained of are both elements entitled to consideration in reaching a conclusion as to the fact. And again, the time at which noises are made is an element to be considered in determining whether a noise constitutes an actionable nuisance. A noise incident to the operation of machinery during the day may not be a nuisance, while the same noise during the usual sleeping hours of the night would constitute a nuisance. And noises made on Sunday may constitute a nuisance, though they would not have been such if made on a weekday.’ 20 R. C. L. 445.

In the case of Reilley v. Curley, 75 N. J. Eq. 57, 71 Atl. 700,138 Am. St. Rep. 510, it is said:

‘The next question is whether noise alone may constitute such a nuisance as to subject the one creating the same to restraint in equity. That such is the case I am convinced from the authorities not only in our state, but in many other jurisdictions. Of course,...

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  • Aufderheide v. Polar Wave Ice & Fuel Co.
    • United States
    • Missouri Supreme Court
    • March 17, 1928
    ...221; Hayden v. Tucker, 37 Mo. 214; Bielman v. Railway Co., 50 Mo. App. 151; Magel v. Benevolent Society, 203 Mo. App. 335; Kobielski v. Creamery Co., 193 N.W. 214; Krocker v. Planing Mill Co., 274 Pa. 143. (14) Appellant's ice plant has a productive capacity of ninety tons per day and a sto......
  • Martin v. Williams, 10758
    • United States
    • West Virginia Supreme Court
    • March 13, 1956
    ...locality becomes a nuisance, and may be enjoined. Jordan v. Nesmith, 132 Okl. 226, 269 P. 1096. In Kobielski v. Belle Isle East Side Creamery Co., 222 Mich. 656, 193 N.W. 214, 31 A.L.R. 183, it was held that noises made on a Sunday may constitute a nuisance, although they would not be such ......
  • Aufderheide v. Polar Wave Ice & Fuel Co.
    • United States
    • Missouri Supreme Court
    • March 17, 1928
    ... ... Benevolent Society, 203 ... Mo.App. 335; Kobielski v. Creamery Co., 193 N.W ... 214; Krocker v. Planing ... on the south side of Carter Avenue. The planing mill and ... lumber yard ... ...
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    • United States
    • Georgia Supreme Court
    • January 14, 1938
    ...N.E. 254, 90 A.L.R. 1203; Friedman v. Keil, 113 N.J.Eq. 37, 166 A. 194, 86 A.L.R. 995; Kobielski v. Belle Isle East Side Creamery Co., 222 Mich. 656, 193 N.W. 214, 31 A.L. R. 183; Roukovina v. Island Farm Creamery Co., 160 Minn. 335, 200 N.W. 350, 38 A.L.R. 1502; Stodder v. Rosen Talking Ma......
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