Bartlett v. Moats

Statement of Facts. That the opinion which has been .prepared by a majority of the Court may be understood, we preface the same by a a statement of facts as gleaned from the record and as stated in Appellants’ brief, which is conceded to be a correct statement by the appellees; The various plaintiffs are the owners of certain properties in Waterwitch Club Subdivision. In said subdivision there are seven dwelling houses. Said subdivision is strictly a residential section of community, there being no business houses, stores, factories, or other buildings' located therein except a club house. The club house and three tennis courts are located on Lot 10. It was the intention of the owners and promoters of said subdivision that said subdivision should be used solely for the pleasure and amusement of the residents of said subdivision' and their guests'. One of the seven dwelling houses is owned by the plaintiff, Sumner G. Rand, and Mary Rand, his wife, and is located approximately 100 feet from the tennis courts and club house. One of the said seven dwellings is owned by Herschel O. Moats and Vivian' D. Moats, his wife, and is located approximately the same distance from the said tennis courts and club house. One of the said dwellings is owned by John Amman and is located approximately 350 feet from *63 the said tennis' courts and said club house. One of the said dwellings is owned by Draper Bartlett, one of the defendants, and is located approximately 150 feet from the tennis courts and club house. One of the said dwellings is owned by J. F. Garrett and is located approximately 150 feet from the said tennis courts and club house. One of the said dwellings is owned by C. O. Saunders, and is located approximately 600 feet from said tennis courts and club house. One of the said dwellings is owned by Carl Bauman and is located approximately 450 feet from said tennis courts and club house. Recently the owners of said subdivision, without the consent and knowledge of the plaintiffs, sold and conveyed said club house and tennis courts to Percy W. Brooks' and his wife, who are now the owners thereof and the defendant, Draper Bartlett, has recently rented or leased said premises, namely the said Lot 10 of Waterwitch Club Subdivision, from the said owners and has taken possession of the said premises and is making use of the property in the manner hereinafter set out. On one of the tennis courts the defendants have erected or caused to be erected and are now maintaining an open air dance floor or pavilion and have surrounded the same with poles on the top of which are attached palmetto leaves and Spanish moss, upon which are strung electric lights of the type used to adorn Christmas trees, and have erected at the edge of the dance floor an unsightly lean-to for the seating of an orchestra, and around the dance floor have placed tables and chairs to be used by their patrons and dancers. On or about the 19th day of July, 1934, the defendants, or one of them, employed a dance orchestra and held a dance on said premises, to which the public at large was invited and an admission charge of the sum of 25c per person *64 was made. Since said date, the'defendants have held several dances, not less than two dances each week. Said dance floor and night club is open to the public. Each time a dance is held a large number of patrons and guests congregate on the' premises to dance and drink. The defendants furnish music made by a band or orchestra. The defendants have named and advertised said public dance pavilion as “The Dream Garden” and the bar room as “The Ship’s Bar” and have erected a large electric sign at the side of South Fern Creek Drive and other signs along the highway to attract patrons thereto. When the said dances are held the orchestra begins playing its instruments about 9 o’clock and continue to play until 1 and 2 o’clock the next morning. As the dance or evening progresses, the noise from the orchestra gets louder and louder and at times the members of the orchestra, as well as the dancers, yell, shout and sing. The patrons and dancers begin to arrive about the time the orchestra begins to play and continue to arrive and depart until it stops. The patrons park their automobiles around and upon said premises. During the evening, such patrons as desire so to do, purchase alcoholic drinks and beverages. -Many patrons become intoxicated and create much noise and confusion by talking, yelling, singing and laughing. When the patrons and dancers leave the premises many are intoxicated and much noise and disturbance is caused by starting their automobiles and blowing horns, yelling, singing and talking. Many of the patrons drive recklessly at great speed .up and down Fern Creek Drive, endangering the lives of other people who may be upon the highway and disturb and annoy the residents of the community and these plaintiffs. The noise made by the orchestra, the patrons, dancers and cars is continuous from the time the orchestra begins to play until' *65 it stops and can be heard plainly in the homes of the plaintiffs to such an extent that it seriously affects the comfort of the plaintiffs in their homes and prevents plaintiffs from sleeping at the time when it is customary for them to retire. The establishment and maintenance of the said bar room and dance pavilion greatly depreciates the value of the plaintiffs’ homes for residential purposes and prevents the sale thereof at their real value. The operation and maintenance of the bar room and dance pavilion constitute a nuisance and should be enjoined. Plaintiffs pray for an injunction against the defendants’ continuing and maintaining the said dance pavilion. Buford, J. This case is before us on appeal from a final decree awarding injunction.- The bill of complaint sought to enjoin the operation of a public dancing pavilion located on a certain lot in a rural subdivision. The findings and judgment were as follows: “One. Thát the Court has jurisdiction of the subject matter and the parties to this cause. “Two. That the equities are with the plaintiffs and against the defendants. “Three. That the operation of a dance hall or dance pavilion twice a week in the evenings or at any time by the defendants' upon Lot 10 of Waterwitch Club Subdivision as per plat thereof recorded in plat book “K,” page 69 of the public records of Orange County, Florida, as alleged in the bill of complaint and as shown by the evidence (during the hours of. rest) constitutes a private nuisance as to the plaintiffs, because the community is strictly residential, and should be enjoined, although the Court finds that said dance hall or pavilion has been conducted with more order and decorum than an ordinary public dance hall is conducted, *66 if not with the most possible order and decorum for a public dance hall. “It Is Therefore Ordered, Adjudged and Decreed as follows: “First: That the motion to dismiss incorporated in the answer be, and the same is hereby overruled and denied. “Second: That the defendants be and they are hereby permanently and perpetually enjoined from maintaining or operating a public dance hall or dance pavilion on Lot 10 of Waterwitch Club Subdivision, as per plat thereof recorded in Plat Book ‘K,’ page 69 of the public records of Orange County, Florida, and from conducting or holding public dances upon said premises. “Third: That the defendants be, and they are hereby perpetually and permanently enjoined from hiring, employing or in any way procuring any orchestra, band, musicians, musical instruments or machines to play or furnish music for public dances or dancing upon said premises. “Fourth: That the defendants be and they are hereby permanently and perpetually enjoined from using said premises or permitting said premises to be used in any manner, or for any purpose that will unreasonably disturb or annoy the plaintiffs in the use and enjoyment of their respective homes. We think that the creation of loud and disturbing noises, in the night time especially, in residential sections may be enjoined by chancery decree as a nuisance, but, of course, each case must stand on its own merit and no general hard and fast rule may yet be laid down stating just what noise may constitute a nuisance and what will not. We quote from U. S. Law Review, August, 1931, page 409, et seq.: “While it has been held that singing at reasonable hours, *67 in connection with the giving of vocal lessons, is not a nuisance per se, it may amount to a nuisance in fact in particular circumstances. In Motion v. Mills (13 Times L. R. 427), the defendants conducted a vocal studio in a business neighborhood, next door to the plaintiffs, a firm of auctioneers. The plaintiffs asserted that their business involved much reckoning and keeping of accounts, and that inaccuracies, due to distractions from noise, might entail serious consequences. They also alleged that the sound of ambitious pupils attempting to scale high notes nearly drove plaintiffs and their clerks mad, and seriously interfered with the proper performance of their work. The court accepted plaintiff’s view of the case and granted an injunction. In Gilbough v. Westside Amusement Co. (64 N. J. Eq. 27) Vice-Chancellor Pitney of New Jersey, writing long before the advent of the radio', expressed the general rule of law in respect to noise saying: That mere noise may be so great at certain times and under certain circumstances as to amount to an actionable nuisance and entitle the party subjected to it to seek the preventive remedy of the court of equity is thoroughly established. The reason why a certain amount of noise is or may be a nuisance is that it is not only disagreeable but it wears upon the nervous system and produces that feeling which we call ‘tired.’ That the subjection of a human being to a continued hearing of loud noises tends to shorten life is, I think, beyond all doubt. Another reason is that mankind needs both rest and sleep, and noise tends to prevent both. “That case dealt with an amusement park in a residential neighborhood. A closer analogy to the radio is afforded by the case of Stoder v. Rosen Talking Machine Co. (247 Mass. 60, 141 N. E. 569; s. c., 241 Mass. 245). It there appeared that the defendant played a phonograph in front *68 of his store for the purpose of attracting trade. This was held to constitute a private nuisance as to the plaintiff, a neighboring shopkeeper. “It is also well settled that the fact that the musical sounds may be generally of an agreeable character, or not necessarily disagreeable, is no ground for denying an injunction, if they are in fact obnoxious under the particular circumstances of the case. In the leading case of Soltau v. DeHeld (2 Simons, n. s. 133), a monastic order of the Catholic Church had established a chapel adjacent to the premises occupied by the plaintiff. It appeared that a set of six bells, of unusual size and weight, were installed and were rung every day at frequent intervals, commencing on some days as early as five o’clock in the morning and continuing until ten in the evening. Witnesses residing at some distance testified that the chimes were pleasant, one witness describing them as a ‘positive gratification’ when heard from afar. It was held that the fact that the sounds might be pleasurable to persons somewhat removed from them did not make them any the less a nuisance to the plaintiff. “As in the case of nuisance generally, a nuisance created by sound may be either public or private, depending upon the number of persons affected. To constitute a public nuisance warranting criminal prosecution, it must appear that the act is one which injuriously affects a substantial number of persons. It has been held, however, that the number need not be very great. (People v. Rubenfeld, 54 N. Y. 245, 172 N. E. 485). The case last cited arose under the provisions of the New York penal law (Sec. 1530) defining a public nuisance, in part, as the doing of an act which annoys, injures or endangers the comfort, repose, health or safety of any considerable number of persons, the section being substantially a codification of the common *69 law rule with respect to indictable nuisances (People v. Borden’s Condensed Milk Co., 165 N. Y. App. Div. 711, aff’d, 216 N. Y. 658 mem.) The defendant conducted a dance hall in a populous neighborhood which was in use every evening in the week, the music and festivities frequently continuing until dawn. Witnesses' testified that the sounds could be heard about a block away. In holding that the defendant was guilty of maintaining a public- nuisance, the court said: To be reckoned as ‘considerable,’ the number of persons affected need not be shown to be ‘very great.’ Enough that so many are touched by the offense and in ways so indiscriminate and general that the multiplied annoyance may not unreasonably be classified as a wrong to the community.’ ” In 46 C. J. 699, the author says: “A dance hall is not a nuisance. It is not classified as a nuisance per se and it is not per se a public nuisance. But a dance hall may become a nuisance by reason of surrounding circumstances, as for instance, by reason of the character of the locality in which it is operated, entitling an adjoining owner or occupant to injunctive relief, although such hall or pavilion is orderly and well regulated as a place of amusement.” Bielecki v. Port Author, Tex. Civ. App. 2 S. W. (2nd Ed.) 101, it was held: “A public dance hall operated within a residence district is intrinsically and inevitably a nuisance.” To the same effect was the holding in Phelps v. Winch, 309 Ill. 158, 140 N. E. 847, 28 R. L. R. 1169. 2 Wood on Nuisance, page 840, Sec. 632, holds: “The noise of musical instruments kept up for such periods of time and at such hours of the day or night as to be really annoying to persons of ordinary sensibilities or *70 that produces other actual ill results is a nuisance and any noise, whether of musical instruments, the human voice, discharge of guns, or however produced, that draws together in the vicinity of a person’s residence or place of business large crowds of noisy and disorderly people is a nuisance.” ■ The author cites Attorney General v. Sheffield Gas Co., 19 E. L. & Eq. 649; Inchbald v. Harrington, L. R. 4 Ch. App. 386; Walker v. Brewster, L. R., 5 Eq. Cas. 21. See also Seligman v. Victor Talking Machine Co., 71 N. J. Eq. 697, 63 Atl. 1093; Reillye v .Curley, 75 N. J. Eq. 57, 71 Atl. 700, 138 Am. St. Rep.- 510; notes 17 L. R. A. (n. s.) 288; 19 Am. Cas. 993 ; 20 R. C. L. 446; Shaw v. Queen City Forging Co., 7 Ohio N. P. 254; 10 Ohio S. & C. P. Dec. 107; McCann v. Strong, 97 Wis. 551, 72 N. W. 1117; Peacock v. Spitzelberger, 16 Ky. Law Rep. 803, 29 S. W. 877; Roukovina v. Island Farm Creamery Co., 160 Minn. 335, 200 N. W. 350, 38 A. L. R. 1502. It- could serve no useful purpose for us to review the evidence. We think there is sufficient basis in the record to support the finding that the operation of the dancing pavilion constituted a private nuisance and should be abated. But, the record does not support the decree in full and it should be modified by confining its application to those hours of the night which are commonly held and considered to be the hours of rest, that is from the hour in the evening when the people in that community are accustomed to retire for the night on through the balance of the night. The record does not disclose that the operation of the pavilion causes any annoyance or is a private nuisance at any other time except when conducted during the hours when the people residing in that residential section are accustomed to take their nightly rest. Neither is it shown by *71 the record that dances when held within the house situated on the lot create any nuisance or annoyance while conducted in the house. It is true that the evidence shows the existence of some annoyance by reason of the passing of automobiles at late hours of the night. But it is not shown that the automobiles did not operate on a public highway where the drivers of such automobiles have the right to operate them in a lawful manner. We therefore, hold that the decree should be modified as above suggested and, when so modified, it be affirmed. So ordered. Ellis, P. J., and Terrell, J., concur. Whitfield, C. J., and Brown, J., concur in the opinion and judgment. Davis, J., dissents..