Meadowbrook Swimming Club, Inc. v. Albert

• Decision Date: 03 February 1938
• Docket Number: 9.
• Citation: 197 A. 146,173 Md. 641
• Parties: MEADOWBROOK SWIMMING CLUB, Inc., v. ALBERT et al.
• Court: Maryland Court of Appeals

197 A. 146

173 Md. 641

MEADOWBROOK SWIMMING CLUB, Inc., v. ALBERT et al.

No. 9.

Court of Appeals of Maryland

February 3, 1938

Appeal from Circuit Court of Baltimore City; Samuel K. Dennis Judge.

Suit by Talbot J. Albert and others against the Meadowbrook Swimming Club, Inc., for an injunction against continuance of a noise nuisance. Decree for plaintiffs, and defendant appeals.

Affirmed.

Walter C. Mylander, of Baltimore (Nathan Patz and Walter C Mylander, Jr., all of Baltimore, on the brief), for appellant.

Robert W. Williams, of Baltimore (J. A. Dushane Penniman and Ritchie, Janney, Ober & Williams, all of Baltimore, on the brief), for appellees.

Argued before BOND, C.J., and URNER, OFFUTT, PARKE, SLOAN, MITCHELL SHEHAN, and JOHNSON, JJ.

URNER Judge.

The appeal in this case is from a decree for an injunction against the continuance of a noise nuisance, the existence of which was asserted, and disputed, in the pleadings and in the testimony.

In regard both to the facts of the case and to the law governing its decision, we are in accord with the conclusions stated in the opinion delivered by Chief Judge Dennis, in the lower court, from which we quote as follows:

'Several years ago the defendant, a business corporation, built an amusement place, including a large swimming pool, with accessory bath houses and other appropriate structures on a lot in the floor of the narrow valley of Jones' Falls. The property lies in the extreme northern section of the city, just south of the new Kelly avenue bridge. * * *

'High hills rise to both sides of the valley of Jones' Falls. To the west, on the less precipitous hills, is built the old settlement known as Mt. Washington. To the east the hills are more precipitous, clifflike, and those knolls and hills, which lie to the northeast, have within the past few years become increasingly popular as sites for expensive residences, with more or less spacious grounds. * * *

'In 1935 the defendant enlarged its amusement place by adding an outdoor dance floor, with a 'shell' platform for the musicians' stand. In the early summer of 1935 the defendant opened the dance floor to the public, and engaged modern jazz orchestras to play dance music from 9 to 12, six nights per week, and used amplifiers to enhance the volume of sound.

'Immediately a number of residents and property owners located on the hills or plateau some 200 feet or more above the dance floor level lying to the northeast were annoyed, and complained in writing to the defendant. Sundry efforts were made to minimize the alleged nuisance. The mechanical amplifiers were virtually abandoned; the dancing cut down to four nights a week; expert advice was sought; various experiments undertaken. Nevertheless, in spite of the competition of other noises, largely unavoidable and inevitable, mostly created by public service corporations and individuals (for example the noise created by passing railroad trains, trolley cars, automobile horns, the hum of traffic on Falls road), the blare of the brasses, the beating of the drums, etc., operated by the musicians in defendant's orchestra was, and is, so penetrating and loud that it cannot be seriously questioned that witnesses, who are doubtless normally constituted, and of exceptional integrity and intelligence, who live on the sides of the hills and the plateau, are unable to sleep, to study, or otherwise lead normal lives in their own homes for four evenings a week during the past and present summer. * * *

'Curiously enough by some law of acoustics, which the court does not profess to understand, the sound of the orchestras has always been much less obtrusive on the same level and on the westerly hill, so that persons living quite near on the Falls road, likewise persons living to the south and in Mt. Washington, suffer no undue inconvenience. Incredible as those facts may seem they were, in the court's opinion, definitely established; to wit, that the effect of the sound becomes intensified as the sound waves ascend the hills to the northeast. * * *

'Though not a nuisance per se, any business so conducted as to become such may be enjoined. Bonaparte v. Denmead, 108 Md. 174, 69 A. 697. Neither is the element of legality nor public use and high quality conclusive. 'The law is clear that where a trade or business as carried on interferes with the reasonable and comfortable enjoyment by another of his property a wrong is done to a neighboring owner for which an action lies at law or equity. In such cases it makes no difference that the business was lawful and one useful to the public and conducted in the most approved method. Susquehanna Fertilizer Co. v. Malone, 73 Md. 268, 20 A. 900, 9 L.R.A. 737, 25 Am.St.Rep. 595; Scott v. Bay, 3 Md. 431; Lurssen v. Lloyd, 76 Md. 360, 25 A. 294; Northern Cent. Ry. Co. v. Oldenburg & Kelley, 122 Md. 236, 89 A. 601. Jackson v. Shawinigan, etc., Co., 132 Md. 128, 103 A. 453.

'The rule which must control is 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 actual physical discomfort to persons of ordinary sensibilities, tastes, and habits, such as in view of the circumstances of the case is unreasonable and in derogation of the rights of the party (Hamilton Corp. v. Julian, 130 Md. 597, 101 A. 558, 7 A.L.R. 746; Woodyear v. Schaefer, 57 Md. 1, 12, 40 Am.Rep. 419) subject to the qualification that it is not every inconvenience that will call forth the restraining power of a court. The injury must be of such a character as to diminish materially the value of the property as a dwelling and seriously interfere with the ordinary comfort and enjoyment of it. Adams v. Michael, 38 Md. 123, 17 Am.Rep. 516; Gallagher v. Flury, 99 Md. 181, 182, 57 A. 672; Euler v. Sullivan, 75 Md. 616, 618, 23 A. 845, 32 Am.St.Rep. 420.

'Many cases (too many in fact to enumerate) are found in the reports of nuisances which were enjoined due to pollution of water courses, and of the air; of continuing damages to property and health. For example, where noxious gases injuriously affecting the health, comfort, and convenience of persons of normal sensibilities so as to deprive persons living nearby of the reasonable enjoyment of their dwellings, the nuisance was enjoined though in a manufacturing and industrial community. Washington Cleaners & Dyers v. Albrecht, 157 Md. 389, 146 A. 233; Susquehanna Fertilizer Co. v. Spangler, 86 Md. 562, 39 A. 270, 63 Am.St.Rep. 533; Taylor v. Baltimore, 130 Md. 133, 99 A. 900, L.R.A.1917C, 1046; Chappell v. Funk, 57 Md. 465.

'Again, nuisances due to the installation of tanks for the storage of inflammable and explosive oils, Hendrickson v. Standard Oil Co., 126 Md. 577, 95 A. 153, escaping smoke, Northern Cent. Ry. Co. v. Oldenburg & Kelley, 122 Md. 236, 89 A. 601, the establishment of a pesthouse whereby persons are exposed to disease, City of Baltimore v. Fairfield Imp. Co., 87 Md. 352, 39 A. 1081, 40 L.R.A. 494, 67 Am.St.Rep. 344, were enjoined.

'Of greater interest are precedents relating to nuisances due to the creation of noises. From those we find that noise alone if it be of such a character as to be productive of actual physical discomfort and annoyance to...