Wahrer v. Aldrich

Vinje, J. The plaintiff claims that the ninth finding of fact to the effect that the operation of the rink, as conducted by the defendant, was not physically annoying to any of the permanent residents of ordinary sensibilities in the neighborhood, is not sustained by the evidence. He further claims that upon the facts found by the court he was entitled to a permanent injunction as prayed for. As would be expected in a case of this kind there is a wide range in the testimony regarding the volume of noise made by the rink. Some described it as very loud and annoying and others as nothing out of the ordinary. All practically agreed that the. noise made by the skating was that of a rather loud rumbling noise — much like that of a train passing over a bridge. Some found the music pleasant, some unpleasant, and upon others it seemed to have made no particular impression. There was medical testimony to the effect that the noise was not of a kind to physically annoy persons of ordinary sensibilities. Such rinks are common enough so that the testimony of each witness can, to some extent at least, be gauged by experience and observation. Upon the whole we think the trial court found the facts substantially as they existed — certainly his findings cannot be set aside as not supported by the evidence. Do the facts found sustain the judgment ? In McCann v. Strang, 97 Wis. 551, 72 N. W. 1117, the general rule governing cases of this kind is stated to be that courts will not abate a lawful business as a nuisance on the ground of noise alone, unless the noise and other incidents thereof are such as would be likely tó cause some “actual, material, physical discomfort to a person of ordinary sensibilities, so circumstanced as the complaining party.” It is therein further stated that “the [41] nature of the trade, the kind of noise, the location, and all the attending circumstances must be taken into consideration.” The standard for measuring the nuisance qualities of the noise is its effect upon a person of ordinary sensibilities. It is to be gauged neither by a neurotic nor a phlegmatic temperament. To constitute a nuisance it must be physically annoying — it is not sufficient that it offend mere taste or what is ideally desirable. An actual effect of discomfort must be produced by it upon the average nervous organization before courts will interfere. Price v. Grantz, 118 Pa. St. 402, 11 Atl. 794; Powell v. Bentley & G. F. Co. 34 W. Va. 804, 12 S. E. 1085, 12 L. R. A. 53; note to Acme F. Co. v. State (34 Ind. App. 346, 72 N. E. 1031) 107 Am. St. Rep. 195 et seq.; 2 Wood, Nuisances (3d ed.) § 611; Joyce, Nuisances, § 183. The business of the defendant was a lawful one. It was located within one block of the business center of the city of Waukesha. The court restrained its operation after 10 o’clock at night and forbade the firing of pistols for starting. No complaint can be made on the ground that it is permitted to operate at unreasonable hours, so as to disturb the sleep of any one during the usual hours of repose. Located as it is near the business center of the city, the rule applicable to one situated in a strictly residence portion thereof cannot be applied. The evidence establishes that considerable noise was incidental to plaintiff’s own business. That is true of many a business located near or in residence sections, such as bowling alleys, dance halls, theaters, or other places of public amusement, stone-cutting works, planing mills, and the operation of most kinds of machinery. True, any of these may become a nuisance, but as ordinarily conducted they are not regarded as such. This world is full of noise, and city dwellers have to temper their enjoyment of it with more than the average amount. Upon the facts found and the test applicable thereto the circuit court reached the right result. By the Gourt. — Judgment affirmed.