Ritz v. Woman's Club of Charleston
| Decision Date | 06 March 1934 |
| Docket Number | 7830. |
| Citation | 173 S.E. 564,114 W.Va. 675 |
| Parties | RITZ et al. v. WOMAN'S CLUB OF CHARLESTON. |
| Court | West Virginia Supreme Court |
Submitted February 14, 1934.
Syllabus by the Court.
1. Noise alone may create a nuisance, depending on time locality, and degree.
2. Where an unusual and recurring noise is introduced in a residential district, and the noise prevents sleep or otherwise disturbs materially the rest and comfort of the residents, the noise may be inhibited by a court of equity.
3. In cases of nuisance the "comparative injury" doctrine should be applied with great caution. The doctrine must yield ordinarily to established property rights.
Appeal from Circuit Court, Kanawha County.
Suit by H. A. Ritz and others against the Woman's Club of Charleston. From an adverse decree, defendant appeals.
Affirmed.
For dissenting opinion, see 182 S.E. 92.
Owen Silverstein & Davis, of Charleston, for appellant.
Brown Jackson & Knight and B. J. Pettigrew, all of Charleston, for appellees.
This is a suit to enjoin night dances in the clubhouse of the defendant. The circuit court found that the dances constituted a nuisance and enjoined their continuation later than 9 o'clock at night. The defendant appealed.
The clubhouse is situated in a residential district of the city. The house was opened in March, 1929. At that time, and continuously since, the plaintiffs owned and occupied residences in the immediate neighborhood of the clubhouse. Between the opening and June, 1930, fifty-eight public dances lasting far into the night were held at the clubhouse. Those dances were patronized by goodly numbers who came mostly in cars. There is no question that all of the public dances were very noisy; that some of them were attended with boisterous, drunken, and unseemly conduct around the clubhouse; that some of the dancers committed indecent trespasses on the neighboring properties; and that the dances deprived the plaintiffs of rest and sleep and otherwise greatly annoyed them. A protest against the dances was made to defendant on behalf of the plaintiffs in June, 1930, and the dances were discontinued until the following November, when defendant announced that it would limit future evening dancing in the clubhouse to private dances. From November until April, 1931, when this suit was brought, ten such dances were held at which the dancing stopped at 12 p. m. The private dances were chaperoned and supervised by some member of the club or other responsible person. A policeman was present for the purpose of preserving order around the clubhouse. The supervisors testified that they saw but few infractions of decorum at the private dances, and that they were not disturbed by the dance noises. The plaintiffs testified, however, that they saw little, if any, improvement in the conduct of the dancers outside of the clubhouse, and that the general noises of the private dances, such as the dance music and the hubbub of the assembling and departing dancers (laughter, calling back and forth, operating the cars, blowing horns, etc.) were just as irritating as those of the public dances. The policeman, who was seemingly unprejudiced, testified that at dances attended by the younger set "the boys got to drinking, some of them *** and it would cause quite a bit of confusion *** there were some of them that wouldn't behave themselves."
A résumé of the evidence in detail would serve no useful purpose. The evidence of plaintiffs is ample to support the finding of the circuit court. We have said, in cases too numerous to mention, that we would not disturb the finding of the trial chancellor on conflicting evidence where he was thus supported, unless we could say he was plainly wrong. White v. Graham, 112 W.Va. 451, 164 S.E. 664. We cannot say that in this suit.
Noise alone may create a nuisance, depending on time, locality, and degree. Wood on Nuisances (3d Ed.) § 611; Joyce on Nuisances §§ 174, 175; 20 R. C. L., subject Nuisances, § 60. It is settled that where an unusual and recurring noise is introduced in a residential district, and the noise prevents sleep or otherwise disturbs materially the rest and comfort of the residents, the noise may be inhibited by a court of equity. Snyder v. Cabell, 29 W.Va. 48, 1 S.E. 241; Gilbrough v. Amusement Co., 64 N. J. Eq. 27, 28, 29, 53 A. 289; Roukovina v. Island Co., 160 Minn. 335, 200 N.W. 350, 38 A. L. R. 1502; Pomeroy's Eq. Juris. (2d Ed.) § 1929, note 16. As was said by the Supreme Court of Pennsylvania in Appeal of the Ladies' Decorative Art Club, 13 A. 537, 539, 22 Wkly. Notes Cas. 75, 77: ...
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