Reilley v. Curley

• Decision Date: 15 December 1908
• Citation: 71 A. 700,75 N.J.E. 57
• Parties: REILLEY et al. v. CURLEY et al.
• Court: New Jersey Court of Chancery

71 A. 700

75 N.J.E. 57

REILLEY et al.

v. CURLEY et al.

Court of Chancery of New Jersey.

Dec. 15, 1908.

Suit by James E. Reilley and others against Michael Curley and others to restrain a nuisance. Issuance of temporary injunction advised.

This is an application on behalf of Reilley and three other complainants against Curley and another to obtain a preliminary injunction.

The bill alleges that the complainants are owners or occupants, or both, of houses in Jersey City, in the neighborhood of Baldwin, Magnolia, and Pavonia avenues and West and East streets; that this is a strictly residential neighborhood; that on East street Curley, one of the defendants, has leased from Byron, the other defendant, two lots of land on opposite sides of that street; that he is engaged in hauling to those lots loads of broken stone; that these stones are in what are termed "boats"; that on the lots he has an engine and a derrick and a cable; that the cable is hitched to the "boats," and they are drawn up, by means of the steam engine, to the top of the pile and there dumped; that then the cable is allowed to run free, and the "boats" are lowered onto the wagons. It is charged that the noise attendant upon the operation of the engine and cable is so great as to seriously interfere with the dwellers in that neighborhood, and is a nuisance. It is also charged that the engine is a secondhand one and in an unfit condition to be used. It is suggested that a muffler could be used upon the engine so as to minimize the noise, and that repairs could be made to it to do away with some of its present defects, which defects are alleged to be one of the causes of the noise complained of. The answering affidavits are mainly directed to proving that the engine was the one ordinarily used for such operations, and that no more noise is attendant upon its operation than is usual in such operations, and that mufflers are not put upon such engines, and that no repairs are necessary to make the engine a proper one to be used with no unnecessary noise in this business. There is some slight attempt to show that it does not make much noise, but there is no direct denial of the allegations of the witnesses for the complainants that much noise does result from the operation. An opportunity was afforded the defendant Curley to experiment with a muffler and in such other way as he might think fit to adopt, but the proofs show that he did not succeed in minimizing the volume of noise, which was as great as theretofore.

Zeigener & Lane, for complainants.

Tumulty & Cutley, for defendants.

GARRISON, V. C. (after stating the facts as above). It will be useful to consider several questions of law before dealing directly with the case at bar. Since the defendant Curley is not engaged in improving the land on which he is piling the stone, but is merely using the land as a storage place for the stone, there is no occasion for the application of the principle that neighbors must endure the usual and customary discomforts arising out of the improvement by one of his property.

The first question relates to the principle to be applied to the rights of the respective parties, and this has been well summed up in a recent case in this court as follows: "While defendant is entitled to the enjoyment of its property in the pursuit of a lawful business, that business must be conducted with due regard to the well-recognized rights of surrounding property owners. When such business becomes creative of conditions which clearly render the appropriate enjoyment of surrounding properties impossible, the rights of others are invaded, and equity will restrain the persistent pursuit of such injury." First M. E. Church of Cape May v. Cape May Grain & Coal Company (N. J. Err. & App.) 67 Atl. 613, 614 (Learning, V. C., 1907).

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, the character and volume of the noise, and the time and duration of its occurrence, and the place where it occurs, and the surroundings thereof, are the important and determinative features. Davidson v. Isham, 9 N. J. Eq. 189 (Williamson, Ch., 1852); Wolcott v. Melick, 11 N. J. Eq. 207, 66 Am. Dec. 790 (Williamson, Ch., 1856); Ross v. Butler, 19 N. J. Eq. 294, 302, 97 Am. Dec. 654 (Zabriskie, Ch., 1868); Cleveland v. Citizens' Gas Light Co., 20 N. J. Eq. 201, 205 (Zabriskie, Ch., 1869); Demarest v. Hardman, 34 N. J. Eq. 470 (Van Fleet, V. C, 1881); Cronin v. Bloemecke, 58 N. J. Eq. 313, 43 Atl. 605 (Emery, V. C, 1899); Gilbough v. West Side Amusement Co., 64 N. J. Eq. 31, 53 Atl. 289 (Pitney, V. C., 1902); Laird v. Atlantic Coast Sanitary Co. (N. J. Ch.) 67 Atl. 389 (Pitney, Adv. M., 1907); First M. E. Church v. Cape May Grain & Coal Co., supra; Powell v. Bentley & Gerwig Furniture Co., 34 W. Va. 804, 12 S. E. 1085, 12 L. R. A. 53 (with numerous cases in the notes); Hill v. McBuruey Oil & Fertilizer Co., 112 Ga. 788, 38 S. E. 42, 52 L R. A. 398; Froelicher v. Oswald Iron Works, 111 La. 705, 35 South. 821, 64 L. R. A. 228, and note; Herring v. Wilton, 106 Va. 171, 55 S. E. 546, 7 L. R. A. (N. S.) 349. 117 Am. St. Rep. 997; 2 Wood, Nuisances (3d Ed.) § 611.

The defendant Curley placed the stress of his argument, so far as the law applicable to the...