Muehlman v. Keilman, 370S73

• Decision Date: 01 September 1971
• Docket Number: No. 370S73,370S73
• Parties: Carl F. MUEHLMAN, Jr. and Janice I. Muehlman, Husband and Wife, Appellants, v. Paul A. KEILMAN and Lorraine Keilman, Husband and Wife, Appellees.
• Court: Indiana Supreme Court

Page 591

272 N.E.2d 591

257 Ind. 100

Carl F. MUEHLMAN, Jr. and Janice I. Muehlman, Husband and Wife, Appellants, v. Paul A. KEILMAN and Lorraine Keilman, Husband and Wife, Appellees.

No. 370S73.

Supreme Court of Indiana.

Sept. 1, 1971.

Albert C. Hand, Rudolph Tanasijevich, Hammond, for appellants.

William J. Muha, Highland, for appellees.

HUNTER, Judge.

This is an appeal from an interlocutory order issued by the Lake Superior Court granting a temporary injunction against the appellants. The action was brought by appellees, Paul A. Keilman and Lorraine Keilman, for an injunction and damages against appellants, Carl F. Muehlman, Jr. and Janice I. Muehlman. Appellees claimed appellants, over a period of four months, maliciously ran, started and raced the diesel engines of their two semi-trailer trucks at all times during the day and night immediately adjacent to appellees' residence property and in close proximity to appellees' bedroom. It was further alleged that the noise and fumes were destructive to the health and comfort of appellees and their family in the use and occupation of their dwelling house and that it had rendered the use of said real estate unhealthy, undesirable, and annoying. It was asserted that such actions of the appellants constituted a nuisance, and appellees sought an injunction to have this nuisance permanently abated, claiming, in addition, damages in the amount of ten thousand dollars ($10,000.00). On March 3, 1970, a hearing was held on appellees' application for a temporary injunction. The trial court, at appellants' request, made special findings of fact and conclusions of law. The trial court found for appellees and granted a temporary injunction against appellants, enjoining and restraining them from starting, idling, and revving their trucks between the hours of 8:30 P.M. and 7:00 A.M. until a further hearing could be had on the permanent injunction. Appeal is taken from this injunction.

Appellants make five contentions of error:

(1) Appellants' actions do not constitute a nuisance, and thus the issuance of the temporary injunction is contrary to law.

(2) The relative inconvenience, damage and injury caused to appellants by the temporary injunction cannot be balanced by any equity on the side of appellees.

(3) The trial court erred in making its special findings of fact and conclusions of law.

(4) The trial court made numerous erroneous rulings upon questions and evidentiary matters, thereby admitting evidence improperly.

(5) The trial court abused its discretion in setting bond at one thousand dollars ($1,000), as it is claimed the damage to appellants far exceeds this sum.

We cannot agree with appellants' contention that these actions cannot constitute a nuisance. Noise, in and of itself, has been held to sufficiently constitute a nuisance. See Davoust v. Mitchell (1970), Ind.App., 257 N.E.2d 332; Sakler v. Huls (1961), 20 Ohio Op.2d 283, 183 N.E.2d 152; City of Chicago v. Reuter Bros. Iron Works (1947), 398 Ill. 202, 75 N.E.2d 355. To amount to a nuisance, the noise must be unreasonable in degree and reasonableness in this respect is a question of fact. Davoust v. Mitchell, supra; Michaelson v. Silver Beach Improvement Association, Inc. (1961), 342 Mass. 251, 173 N.E.2d 273; Stevens v. Rockport Granite Co. (1914), 216 Mass. 486, 104 N.E. 371; Kobielski v. Belle Isle East Side Creamery Co. (1923), 222 Mich. 656, 193 N.W. 214; Olsen v. Tung (1934), 179 La. 760, 155 So. 16.

It should also be noted that this temporary injunction did not preclude appellants from operating their trucks, but only concerned starting, idling, and revving them between the hours of 8:30 P.M. and 7:00 A.M. Noise made at night during normal sleeping hours may be a nuisance, while the same or even greater noise during the day would not be. Davoust v. Mitchell, supra; City of Rochester v. Charlotte Docks Co. (Sup., 1952), 114 N.Y.S.2d 37; Firth v. Scherzberg (1951), 366 Pa. 443, 77 A.2d 443; East Arkansas Construction Co. v. James (1947), 211 Ark. 154, 199 S.W.2d 589; Kosich v. Poultrymen's Serv. Corp. (1945), 136 N.J.Eq. 571, 43 A.2d 15; Friedman v. Keil (1933), 113 N.J.Eq. 37, 166 A. 194; Roukovina v. Island Farm Creamery Co. (1924), 160 Minn. 335, 200 N.W. 350; Kobielski v. Belle Isle East Side Creamery Co., supra. To borrow from Samuel T. Coleridge's 'The Rime of the Ancient Mariner' as quoted by the Michigan Supreme Court in Borsvold v. United Dairies (1957), 347 Mich. 672, 674, 81 N.W.2d 378:

'Oh sleep! it is a gentle thing, Beloved from pole to pole!'

Firth v. Scherzberg, supra, involved facts quite similar to those in the instant case. Plaintiff sued to restrain defendant from using certain unimproved land as a terminal parking place for tractor-trailer trucks. The court there held that operation of a trucking business on the land was not a nuisance, per se, but it did constitute a nuisance in fact in the nighttime so as to require an injunction against such operation from 8:00 P.M. to 7:00 A.M.

Appellants make specific allegations which they claim cause the lower court's decision to be contrary to law. They first claim there was no injury to appellees' property. However, no actual damage to property need be shown. The nuisance statute in question, IC 1971, 34--1--52--1, (Ind.Ann.Stat. § 2--505 (1967 Repl.)), is as follows:

'Whatever is injurious to health, or indecent, or offensive to the senses, or an obstruction to the free use of property, so as essentially to interfere with the comfortable enjoyment of life or property, is a nuisance, and the subject of an action.'

Nowhere within this statute is there any mention of actual damage to property. In Owen et al. v. Phillips et al. (1881), 73 Ind. 284, a case cited with approval by appellants, the court stated:

'Appellants were not bound to prove an injury to the house, * * *. The house might have stood as perfect in all its parts, and as free from injury, as it was the day it was built, and still the appellants have had ample cause for injunction. If dust, dirt, smoke and offensive odors essentially interfered with the comfortable enjoyment of the house, * * * the action might be maintained, although not a penny's value of injury was done to the house itself.' 73 Ind. at 293.

Indeed, it would be a severe burden to require proof of physical damage, and, with our new understanding of the imminent threats upon the environment of this country, such a requirement would be intolerable. For instance, it might be extremely difficult to show that the smoke and acrimonious odors billowing from the smokestacks of a neighboring factory were doing physical damage to property. If one must wait until the condition is such as to actually cause physical damage to the property, it may well be too late.

Appellants next contend that there was a failure to show irreparable harm.

'It is a well-settled doctrine that equity will restrain a private nuisance at the suit of the injured party.' 4 Pomeroy's Equity Jurisprudence 955 (5th ed. 1941).

The general rule in Indiana is that if there is great injury and no adequate remedy at law then an injunction can be issued. Xenia Real-Estate Co. v. Macy (1897), 147 Ind. 568, 47 N.E. 147; Champ. v. Kendrick (1892), 130 Ind. 549, 30 N.E. 787; Biggs v. Bank of Marshfield (1929), 90 Ind.App. 467, 169 N.E. 71; Chappell v. Jasper County Oil and Gas Co. (1903), 31 Ind.App. 170, 66 N.E. 515; Miller v. Bowers (1902), 30 Ind.App. 116, 65 N.E. 559. Appellants cite the case of Spurgeon v. Rhodes (1906), 167 Ind. 1, 78 N.E. 228, which apparently requires that the harm be irreparable. However, this is essentially an exercise in semantics. Definitions of 'irreparable injury' are somewhat sparse, but we agree with that found in Black's Law Dictionary 924 (4th ed. 1951):

'This phrase does not mean such an injury as is beyond the possibility of repair, or beyond possible compensation in damages, or necessarily great damage, but includes an injury, whether great or small, which ought not to be submitted to, on the one hand, or inflicted, on the other; and which, because it is so large or so small, or is of such constant and frequent occurrence, or because no certain pecuniary standard exists for the measurement of damages, cannot receive reasonable reredress in a court of law.'

Thus, it can be seen that a standard of 'irreparable injury' would be nearly synonymous with a standard of great harm coupled with no adequate remedy at law. In fact, the former might require a less stringent standard than the latter.

If plaintiff can show great damage and no adequate remedy at law, he is entitled to injunctive relief. A definition of 'great damage' is difficult and will depend on the individual circumstances of each case. In the instant case, appellants' conduct has deprived appellees of their sleep which, if allowed to continue over an extended period could be extremely injurious to their health. Appellants' action clearly interfered with appellees' comfortable enjoyment of their property. We consider this sufficient to be considered great damage. Appellees too must show that they have no adequate remedy at law.

'The power of a court of equity, in a proper case, to enjoin a nuisance is of long standing, and apparently has never been questioned since the earlier part of the eighteenth century. As in other cases of equity jurisdiction, it must appear that recovery of damages at law will not be an adequate remedy; but since equity regards every tract of land as unique, it considers that damages are not adequate where its usefulness is seriously impaired.' William L. Prosser, Law of Torts 624 (3d ed. 1964).

In this instance, appellees' enjoyment has been substantially impaired. If their health is damaged it is difficult to perceive of a truly adequate remedy at law by which they could receive reparation for the injury done. Such conduct is of a continuing nature so that damages would then become a continuing occurrence and require...