Austin v. Converse

Opinion by Mr. Chief Justice Mitchell, The complainant’s bill was based on averments that the extent and mode of operation of respondents’ works had been so changed since her moving into the neighborhood as to produce vibration, noise, soot and smoke that made her residence untenantable. The evidence totally failed to establish any branch of the alleged cause of action. The learned judge below negatived all the complaints except that relating to the noise created by certain riveting machines. He did not find that this had been recently increased, but did find that it tended to disturb sleep. He therefore enjoined the running of said machines between 8 p. m. and 7 a. m. Whether this con [9] elusion was necessitated by the evidence must depend on a general review of the established facts of the case. From the findings of fact affirmed by the judge it appeared that the complainant leased the house in 1899. The neighborhood was then and had been for upwards of twenty years a manufacturing one, the residence at that time being surrounded by foundries, iron and steelworks and factories of different kinds. “ In 1899 and for many years previously, the defendants operated in a way producing more noise and smoke than were produced when the bill was filed, their works on Buttonwood Street to a point within seventy-two feet of Eighteenth Street. No additional noise or dirt or smoke ivere produced by the operations which were conducted in the new building. On the contrary, all noises, smoke, etc., ivhich could affect the plaintiff, were diminished considerably since 1899.” In 1892 “ the defendant erected a new building at Eighteenth and Buttonwood Streets, opposite to a part of the complainant’s premises. This building is quite large, and in it the work of riveting by pneumatic tools is carried on. This work is done all day and all night, except on Sundays. The noise of this work is very loud, and is distinctly heard in the plaintiff’s house, and is detrimental to her comfort and disturbs her sleep and disturbs the comfort and interferes with the sleep of her boarders, notwithstanding the fact that the defendants have placed the machinery for this noisy part of their work at the most remote spot from the plaintiff’s house that it is possible to place it; to wit: on the side facing the Reading Railroad Subway.” The complainant went into the house in 1899 on a lease for one year, and notwithstanding its inconveniences and discomforts she renewed her lease twice for a year at a time, and has since remained as tenant from year to year without any reduction in rent. It is an additional circumstance not without weight that in 1905, six years after complainant’s occupation began, her sister purchased the house and has continued to be the owner. As already said the learned judge found the facts against all the complaints except that as to the disturbance of sleep by the noise of the pneumatic riveting machines. These were put in their present location in 1902 and this bill was not filed [10] until 1906. While this delay as the learned judge found, would not estop her, yet it is very strongly persuasive that the complaint is exaggerated. In fact, gross exaggeration is manifest all through the case. It is expressly found as a fact in regard to the general complaint of nuisance from the operation of defendants’ works and its increase since complainant’s occupation of the house. Although one of the judge’s conclusions of law is that no necessity has been shown for the running of the riveting machines at night, yet it is found as a fact that “ the works of the defendants have been operated by night in the way they are now operated, for nearly twenty years.” A consideration of the whole testimony, in view especially of this pervading exaggeration, compels us to differ with the learned judge below, so far as to hold that while the noise is no doubt an inconvenience and discomfort yet it is of the class incident to the neighborhood when the complainant voluntarily went into and remained in it, and is not sufficiently greater in degree to entitle her to interfere with it. The decree is reversed, the injunction dissolved and the bill directed to be dismissed.