Wolcott v. Doremus
| Decision Date | 15 October 1915 |
| Citation | 11 Del.Ch. 58,95 A. 904 |
| Court | Court of Chancery of Delaware |
| Parties | JOSIAH O. WOLCOTT, Attorney General of the State of Delaware, on relation of MICHAEL W. MALONEY and EUGENE L. HUSBANDS, v. THOMAS E. DOREMUS, President; JAMES S. GRANT, Treasurer, and WILLIAM A. JOSLYN, Secretary, and members respectively of the DUPONT TRAPSHOOTING CLUB, an unincorporated association of persons, and upwards of Three Hundred other persons, members of and as said DUPONT TRAPSHOOTING CLUB |
INFORMATION TO RESTRAIN A NUISANCE. This was an information by the Attorney General of the State, on the relation of two persons, against certain named persons as officers and members of the club and against the unnamed members of the club. An appearance was entered not only for the persons named, but also for the club as an organization, and a sworn answer was filed by the defendants. The rule for a preliminary injunction was heard on bill, answer, ex parte affidavits and exhibits, the answer being treated as an affidavit. The facts appear in the opinion.
Defendants be at liberty to seek a dissolution of the preliminary injunction.
Robert Penington, with the Attorney General, for the relators.
William S. Hilles and J. P. Laffey, for the defendants.
An information has been filed by the Attorney General upon the relation of two citizens against the officers of an unincorporated association of persons organized to shoot guns at targets. The organization is named duPont Trapshooting Club, and has a membership of at least four hundred persons. Some of the targets are flying targets being clay discs flung from a mechanical device called a trap, in such a way as to imitate to a degree the flight of a bird rising from the ground. The club occupies a tract of land North of one of the suburban settlements on the western outskirts of the City of Wilmington, and near some of the mills, testing plants and other branches of the duPont Company, a manufacturer of explosives. In this neighborhood there are numerous residences to the South, chiefly occupied by laborers, while to the Northeast and West is farming land sparsely settled. The land of the club is bounded on the East by a public road, the only public approach to the city from the North, and one much used by vehicles and pedestrians. Of the five traps, one is located one hundred and eighty-nine feet from the westerly side of the public road, and the others about seventy feet apart further to the West, the first three being on a line about perpendicular to the line of the road, and the other two being at an angle with the first three and facing towards the road. There is practically no obstruction to the flight of shot from the premises of the club onto the public road so far as appears in the evidence. At each trap are five places marked as stations, or points, from which the gunners shoot, so that there may be twenty-five persons shooting guns at the same time.
By the information, the Attorney General asks that the shooting be perpetually enjoined as a public nuisance, because it is detrimental to public health and safety, and asks also for a preliminary injunction. The grounds of complaint may be classified into (1) annoyance from the noises incident to shooting; and (2) danger to users of the highway from noises and from shot falling into it.
Many affidavits were filed on each side of the cause as to the volume, character and effect of the noises upon the health and comfort of people residing within the range thereof. Particularly obnoxious was the shooting at night. Nine sick people and two doctors testified respecting the effect of noises on health. There were also affidavits of several persons whose horses had been frightened to a dangerous degree by the noises while passing along the road. A large number of persons made affidavits that they had been struck by shot in the road, and some hit so hard as to indicate that it was more than a spent shot, but one in flight. From the premises of the club the road to the southward descends rapidly by a very steep grade to a covered bridge over the Brandywine River at the bottom of the hill. Horses, too, were so struck and runaways resulted in some cases, and horses were made permanently nervous, or gun-shy, thereby. One such runaway horse dashed down the steep hill in the road and another runaway was with difficulty prevented from doing so. Indeed, shot was found in many places in the public road, and even thirty feet beyond the limit of it farthest from the club premises. None of these facts as to shot in the road were denied by the defendants.
So far as the effect of the noises from the firing of the guns is concerned, it is not deemed by me necessary to reach a conclusion at this time, or to grant a preliminary injunction against the firing of guns on account of noises thereof. The evidence is so conflicting as to the effect of the noises on the health of the public that I am not warranted in awarding that relief on that account.
The decision of this case at this preliminary stage is not difficult. It is the duty of the Attorney General to seek, and of a court of equity to grant, an injunction to prevent the continuance of a public nuisance which affects or endangers the public safety, and, therefore, require immediate judicial interposition. See the citations of the defendants' solicitors. 2 Joyce on Injunctions, §§ 1078, 1079; 2 Beach on Injunctions, § 1079. These support the sound and reasonable proposition urged by the defendants, which is thus stated in their brief:
"The power of a court of equity to enjoin the commission of a public nuisance at the suit of the Attorney General is limited to those of public nuisances which affect or endanger the public safety or convenience, and require immediate judicial interposition."
In effect this principle has been recognized in this State where the duty of the Attorney General to invoke by an interposition of the injunctive power of the Court of Chancery to prevent the continuance of a public nuisance to protect the public from serious injury. Atty. Gen. v. Baynard, 5 Del.Ch. 499; Harlan, &c., Co. v. Paschall, 5 Del.Ch. 435. The former case related to a building, parts of which extended over the public street of the City of Wilmington, and alleged to be an obstruction to the free use of the highway. The Attorney General filed an information on the relation of an adjoining owner for an abatement, and the case was heard on a rule for a preliminary injunction. The Chancellor, while recognizing his power, refused to grant the preliminary injunction because it was not clearly shown that it was necessary to do so in order to protect the public from serious injury. He expressly said this:
"In a clear case of substantial and material encroachment upon a public street or highway, of such a character as to seriously interfere with its use, I would consider it my duty to act without the aid of a jury; but where the encroachment, although illegal, is not of that character, the proper tribunal is a court of law, which has full power, not only to punish the offender, but to abate the nuisance."
The other case cited related to a wharf and the bill was by an adjoining owner to enjoin the building of it into the river so as to damage the complainant. The relief was denied because the evidence did not sustain the claim made by the bill. But the Chancellor recognized the above principles. Indeed, they are too well established to be debated.
If therefore, it is made reasonably clear that the safety of users of the highway is imperiled by the shooting on the premises of the club at flying targets by members of the club, and other persons invited and permitted to shoot there then a public nuisance exists, and...
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... ... which the Legislature, in the exercise of the police power of ... the state, had lodged exclusively in appellee ... Wolcott v. Doremus (1915), 11 Del. Ch. 58, ... 101 A. 868; City of Rochester v. Gutberlett ... [202 Ind. 144] (1914), 211 N.Y. 309, 105 N.E. 548, L.R.A ... ...
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Jansen Farms, Inc. v. City of Indianapolis
...which the Legislature in the exercise of the police power of the state had lodged exclusively in the appellee. Wolcott v. Doremus (1915) 11 Del. Ch. 58, 95 A. 904;Id., 11 Del. Ch. 277, 101 A. 868;Rochester v. Gutberlett (1914) 211 N. Y. 309, 105 N. E. 548, L. R. A. 1915D, 209, Ann. Cas. 191......
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...to abate a public nuisance. It is too clear for comment that this court has jurisdiction over such an action. See Wolcott v. Doremus, 11 Del.Ch. 58, 95 A. 904; Wolcott v. Doremus, 11 Del.Ch. 277, 101 A. Defendants appear to argue that this court lacks jurisdiction because the complaint alle......