Magel v. Benevolent Society , 203 Mo. App. 335 ( 1920 )

This is an equity suit, the purpose of which is to abate and enjoin the maintenance of an alleged nuisance.

The plaintiffs, being husband and wife, are the owners of a group of dwelling houses called flats, being known as numbers 2708-2710 and 2714 Arsenal street, which is a portion of the city of St. Louis used mainly for residences and small stores. The plaintiffs reside in the upper flat of said group and the one which adjoins the property owned and occupied by the defendants.

The defendants are organized under the statutes as benevolent or educational corporations and are chartered as such, and are sometimes called social clubs. One of the defendants is the owner of the property directly west of the plaintiffs' property, extending from the plaintiffs' property to the corner of Iowa avenue, and on which property the defendants have erected and maintain buildings known as Swiss Hall and Swiss Turner Hall.

In addition to the foregoing facts, the bill in substance alleges, that the three-story building known as Swiss Hall adjoins the western wall of the plaintiffs' flats for a distance of some twenty feet; that there is also to the west of plaintiffs' flats a garden maintained by the defendants and which extends back from Arsenal street a short distance to the defendants' buildings; that the eastern wall of a part of the Swiss Hall stands flat up against the west wall of the plaintiffs' flats; that in the basement of this building owned and maintained by the defendants, the defendants operate four bowling alleys, the pits of which are at the eastern end and against the east wall of defendants' buildings which is in contact with plaintiffs' west wall; that the defendants' members in using these bowling alleys throw the balls from the western end to the eastern end of their building so that the noise and turmoil is communicated to and through plaintiffs' west wall and to their flats, and that the use of the bowling alleys maintained by the defendants cause great noise and turmoil, disturbing the peace of the plaintiffs and their tenants, prevent them from sleeping, reduced the value of their property, and permanently injure their property.

It is further alleged that the defendants were in the habit of leaving the windows of the room where they maintain shower baths open, and which windows face plaintiffs' yard, exposing the bathers to plaintiffs' view; that the defendants maintain a bar on their premises where intoxicating liquors were dispensed on Sundays and week-days, and that the defendants' members habitually and continually, in the use of the baths, in bowling and also at the bar, use loud, boisterous, profane and obscene language.

The bill prays that the defendants be enjoined from using the bowling alleys and using the said baths, in such manner as to cause plaintiffs' annoyances and disturbances and injuries and from the use of either without compliance with such changes in the condition of their situation and construction as it may appear proper to require defendants to make to preclude injury to plaintiffs' rights, and from the use of the indecent, profane and obscene language herein complained of, and from any and all other acts in the use of the premises as now constructed and used, whereby the peace, comfort and health of the plaintiffs have been, or may be hereafter disturbed, the value of their property impaired and their tenants caused to remove from their premises, and for general relief.

The defendants answer by general denial, and also set up that defendants have invested a large sum of money in their property; that the apparatus used for bowling is of the most modern type to prevent the balls or pins striking the walls, and that plaintiffs complain only because they failed to sell the defendants the adjoining lot.

After a hearing the court entered a decree for the plaintiffs, granting to them an injunction as to the indecent use of the baths and also as to the use of indecent language and disorderly conduct, but denied their request for injunction as to the use of the bowling alleys and as to the illegal sale of liquors on the defendants' premises.

This decree being unsatisfactory to the plaintiffs they have brought the case here for review, contending that the language of the decree is ineffective to enjoin what it purports to enjoin, and further it was error for the court to refuse to enjoin the use of the bowling alleys and also the illegal sale of liquors.

As to the ineffectiveness of the decree to enjoin what it purported to enjoin.

The decree, omitting the formal parts, is as follows:

"The court doth further find, that the defendants, and the members of the defendant organizations have used the baths installed and used in connection with the property of said defendants, described in the pleadings and known as No. 2726 Arsenal Street, in the City of St. Louis, Missouri, in such a manner, and permitted their members to use such language in the hearing of plaintiffs, as to constitute a nuisance; and that the continuance of the practice of the bathers will result in an injury to plaintiffs; and that defendants, in the use of the garden on the north side of their property and the members in leaving the hall, speak in such loud and boisterous tones and at times use language that amounts to a nuisance to plaintiffs; and that they should be restrained from using their property in such manner, to the injury of plaintiffs.

"And it is therefore, ordered, adjudged and decreed by the court, that a permanent injunction be granted herein, and that the defendant organizations and their members and each of them be, and are hereby perpetually enjoined and restrained from using the baths in such manner as to cause plaintiffs annoyance and disturbance, and from using indecent, profane and obscene language, in, on and about their premises, so as to destroy the peace, comfort and health of the plaintiffs, in the use, occupancy and enjoyment of their premises described in the petition and known as Nos. 2708, 2710 and 2714 Arsenal Street, in the City of St. Louis, Missouri."

An injunction decree should be definite and specific so as to inform the defendants what they can and what they cannot do, and also for the reason that unless it is definite and specific it will be impossible for it to be a basis for a contempt charge. The first paragraph of the decree seems to be a finding of fact as to what the defendants did, but it does not set out the manner in which the baths were used as shown by the evidence. The finding is merely that the baths were used in such a manner as to constitute a nuisance without stating how they were used. Being a finding for plaintiffs the allegation of plaintiffs' petition was to the effect and the plaintiffs' evidence tended to prove the allegation, that the bathers used the baths with the windows open which adjoined plaintiffs' back yard, and thereby exposed to plaintiffs' view their nude bodies. Presumptively the court found on this question of the use of the baths in behalf of plaintiffs, and having so found when it came to the decree the defendants should have been ordered to cease the use of the baths so as to expose their nude bodies to the view of anyone in plaintiffs' back yard, and should further have been enjoined from using or permitting the use of loud, boisterous and obscene language while using the baths.

In the finding of facts in the decree the court found that the defendants while in the garden on the north side of their property and also in leaving the hall, spoke in loud and boisterous tones and at times used language that amounts to a nuisance to plaintiffs, and that they should be restrained from using their property in such manner to the injury of plaintiffs. Presumably the language referred to in the paragraph finding the facts is the indecent, profane and obscene language that is decreed against in the second paragraph, and we think sufficient in that regard.

The record before us is quite voluminous, containing something over 300 pages, and it would serve no useful purpose for us to attempt to set out the evidence.

As to the bowling alleys, it appears that there were 24 different clubs and societies that meet at the Swiss Turner Hall; that the bowling alleys were used practically every evening in the week, especially on Saturdays and Sundays and up until late hours in the night and on occasions running into the hours of the morning; that prior to the summer of 1916 the bowling alleys had been in operation for some time, but on account of the fact that before that time there was a north and south partition wall in the basement of the Swiss Hall which separated the bowling alleys from plaintiffs' west wall and the defendants' east wall and several feet west therefrom and which prevented the noises caused by the bowling from disturbing the plaintiffs, plaintiffs had not complained.

It appears from the evidence that during the summer of 1916 this partition wall was removed and the pits of the alleys where the pins break and the balls collide with the cushions were moved eastwardly so as to bring them nearer to the plaintiffs' west wall and almost against defendants' east wall.

As to the effect of the noises produced by the bowling, the evidence of plaintiffs consisted of testimony of themselves, of their tenants, neighbors, relatives, friends. In a general way, it established a clear case to the effect that the noises produced by the bowling rendered the condition of their premises intolerable; that it disturbed their peace and kept the plaintiffs and at least one of their tenants from sleeping at night. The evidence of the plaintiffs' witnesses generally was to the effect that the bowling at first caused a rumbling sound as the ball was started down the alleys, resembling thunder which was followed by a loud noise caused by the contact of the balls with the pins.

A real estate man who was familiar with the values of property in that neighborhood, testified that the value of plaintiffs' property was lessened by the noise, and two of plaintiffs' tenants testified that unless the noise was abated that they would move from the premises. The noise produced not only tended to render the flat immediately east of defendants' property unenjoyable, but it also extended to the other flat of plaintiffs which was further to the east.

During the progress of the trial at the suggestion apparently of defendants' counsel, which was concurred in by the court and plaintiffs' counsel, the cause was adjourned for the purpose of permitting the defendants to make certain structural changes in their property with the idea that they could perhaps abate the noise. To this end the defendants at a cost of about $70 put in a hollow tile wall at the back of the pits of the bowling alleys extending from the floor to the ceiling and almost flush up against the defendants' east wall. There was perhaps a space of a few inches between the walls, but the evidence is contradictory on this question. However, upon the trial being resumed the testimony of plaintiffs is to the effect that the noise was just as great as it had been before.

Defendants produced a number of witnesses, being members of the various organizations, who contradicted to some extent the plaintiffs' testimony in reference to the noise produced by the bowling, but none of them were at any time in the plaintiffs' house or in his flats at the time the bowling took place. Several of them went into the plaintiffs' back yard while the bowling was in progress, and testified that they could not detect the fact that the bowling was going on.

Plaintiffs produced a consulting engineer as a witness, who qualified as an expert on the question of sound and sound conducting bodies and their practical effects. He testified in answer to a hypothetical question involving the facts as presented by the evidence, that the noise of bowling would be communicated through the walls of the buildings and into the residence of the plaintiffs to a considerable greater extent than it would be communicated to the surrounding air; that the communication would be possibly ten times as great; that the walls of the buildings would act as a conductor of the sound waves. The witness further testified that all walls act as a sounding board if they have a plain surface, and that where the wall between the property of plaintiffs and defendants was reinforced or added to by a hollow tile glazed wall, that it is probable that this would cause the sound to be carried with more intensity.

The evidence is uncontradicted that it is not necessary for the defendants in order to maintain what is known as a regulation bowling alley to have the pits of the alley where the noise is produced close to the plaintiffs' wall; that at a cost of about $600 the alleys could be moved westwardly a sufficient distance so as to obviate the noise that causes the disturbances to the plaintiffs; that a new north and south partition wall could be constructed in the basement westwardly from the defendants' east wall a sufficient distance so as to leave a considerable air space between the two walls and with the pits of the bowling alleys against this new partition wall the nuisance would be obviated.

From a reading of the record it appears that the manner in which these bowling alleys were conducted and constructed they produced such noises which were carried through the walls to the plaintiffs' premises as to constitute a nuisance, and that such is unnecessary, as by an expenditure of $600 the nuisance can be entirely abated.

In Snyder v. Cabell, 29 W. Va. 48, the court enjoined the maintenance of a skating rink where it appeared the noise from the rink materially disturbed persons residing in proximity thereto, on the ground that the same was a nuisance.

Also in Cape May M.E. Church v. Cape May Grain, etc. Co.,73 N.J. Eq. 257, the court restrained the operation of a skating rink situated adjacent to a church and parsonage, on the ground that its operation constituted a nuisance, it appearing that the week-day services of the church were interfered with on account of the noise, and also that the Pastor was unable to pursue his work in his study, which was only a few feet from the rink.

Likewise in St. Margaret's Church v. Stephens, 29 Ont. 185, the court granted an injunction against the managers of a skating rink, restraining them from causing a band to be played, thereby disturbing church services in a church situated on a lot adjoining the rink, on the ground that the noise created constituted a nuisance.

In Shreveport v. Liederkranz Society, 130 La. 802, 40 L.R.A. (N.S.) 75, while the court denied the injunction on the ground that the evidence failed to show that the bowling alley as conducted by defendant was a nuisance, the court says:

"If the testimony in the record showed that the acts of defendant (operating the bowling alley) disturbed the physical comfort of the neighbors to an injurious extent, it would become our duty to restrain the defendant."

Also in Pape v. Pratt Institute, 127 A.D. 147,111 N.Y.S. 354, although the court recognized that a bowling alley is not in itself a nuisance, yet, since the one at bar was alleged to be located and conducted in such a manner as to constitute one, and being of a continuing nature, an injunction was granted to restrain its maintenance.

While it is true that a person has the right to the exclusive dominion over his own property and the right to enjoy it for all purposes for which such property is customarily enjoyed, yet these rights are subject to the qualification that the use to which one puts his property must be reasonable and such as will not materially and prejudicially affect the rights of others. As is said by Mr. WOOD in his work on Nuisances (3 Ed.), page 3:

"Every person yields a portion of his right of absolute dominion, and use of his own property, in recognition of and obedience to, the rights of others, so that others may also enjoy their property without unreasonable hurt or hindrance . . . As to what is a reasonable use of one's property must necessarily depend upon the circumstances of each case; for a use for a particular purpose and in a particular way in one locality that would be lawful and reasonable might be unlawful and a nuisance in another."

In the instant case plaintiffs' owned property which they occupied as their home in a locality of the city which was in the main given over to residences and small stores. We think the evidence disclosed that their right to reasonably enjoy this property as a home was materially interfered with and unnecessarily so by the defendants in the manner of operating their bowling alley and in the way in which it was constructed. It should not be necessary to enjoin the maintenance of this bowling alley, but in view of the evidence which discloses that the nuisance can be abated by an expenditure of $600 as heretofore stated, we think the defendants should be given a reasonable opportunity of abating the nuisance by changing the construction of their bowling alleys; that in the event this is not done that then the use and maintenance of the bowling alleys should be perpetually enjoined.

As to the question of enjoining the illegal sale of intoxicating liquors, on defendants' premises on Sundays, the evidence shows that liquors were dispensed to all those members of the various organizations who held membership cards and that this was done at a service bar on defendants premises. This may or may not rave constituted a criminal offense under the laws of Missouri, and we do not find it necessary to decide that question here. The evidence does not show that the fact that these liquors were dispensed on Sunday caused the nuisances that were disclosed by the evidence. A court of equity has no jurisdiction to enjoin the commission of a crime. [State ex rel. Thrash v. Lamb, 237 Mo. 437, 141 S.W. 665.] All the plaintiffs' evidence tended to prove in reference to the matter was that these various societies dispensed intoxicating liquors to their members on Sunday and that this constituted an offense under the laws of Missouri. There was no evidence connecting the other nuisances created, such as noises from the bowling alleys, the use of the baths and the loud and boisterous and obscene language with the illegal sale of liquors on sunday. To grant the plaintiffs the relief asked for would be for us to enjoin the commission of a crime. This a court of equity will not do, as this is a matter to be dealt with by the criminal courts.

For the reasons herein stated the Cimmissioner recommends that the judgment be reversed and the cause remanded with directions to enter a decree in behalf of plaintiffs' consistent with the views herein expressed.